THE 1987 CONSTITUTION

OF THE
REPUBLIC OF THE PHILIPPINES
ARTICLE III
BILL OF RIGHTS
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized.cralaw
Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise, as prescribed by law.cralaw
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding.cralaw
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.cralaw
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political rights.cralaw
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.cralaw
Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.cralaw
Section 8. The right of the people, including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not be abridged.cralaw
Section 9. Private property shall not be taken for public use without just compensation.cralaw
Section 10. No law impairing the obligation of contracts shall be passed.cralaw
Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any
person by reason of poverty.cralaw
Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.cralaw
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against
him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.cralaw

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence
against him.cralaw
(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the
rehabilitation of victims of torture or similar practices, and their families.cralaw
Section 13. All persons, except those charged with offenses punishable by reclusion perpetuawhen evidence of guilt is
strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required.cralaw
Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.cralaw
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy
the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to
have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear
is unjustifiable.cralaw
Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion,
when the public safety requires it.cralaw
Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.cralaw
Section 17. No person shall be compelled to be a witness against himself.cralaw
Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations.cralaw
(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have
been duly convicted.cralaw
Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither
shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter
provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.cralaw
(2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use
of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.cralaw
Section 20. No person shall be imprisoned for debt or non-payment of a poll tax.cralaw
Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law
and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same
act.cralaw
Section 22. No ex post facto law or bill of attainder shall be enacted.
EN BANC
[G.R. No. 104768. July 21, 2003]
Republic of the Philippines, petitioner, vs. Sandiganbayan, Major
General Josephus Q. Ramas and Elizabeth Dimaano,
respondents.
DECISION
CARPIO, J.:
The Case

Before this Court is a petition for review on certiorari seeking to set

aside the Resolutions of the Sandiganbayan (First Division) 1[1] dated 18
November 1991 and 25 March 1992 in Civil Case No. 0037. The first
Resolution dismissed petitioners Amended Complaint and ordered the
return of the confiscated items to respondent Elizabeth Dimaano, while the
second Resolution denied petitioners Motion for Reconsideration.
Petitioner prays for the grant of the reliefs sought in its Amended
Complaint, or in the alternative, for the remand of this case to the
Sandiganbayan (First Division) for further proceedings allowing petitioner
to complete the presentation of its evidence.

Antecedent Facts

consultant. Although the amount of P2,870,000.00 and

$50,000 US Dollars were not included, still it was disclosed
that respondent has an unexplained wealth of P104,134. 60.

Immediately upon her assumption to office following the successful

EDSA Revolution, then President Corazon C. Aquino issued Executive
Order No. 1 (EO No. 1) creating the Presidential Commission on Good
Government (PCGG). EO No. 1 primarily tasked the PCGG to recover all
ill-gotten wealth of former President Ferdinand E. Marcos, his immediate
family, relatives, subordinates and close associates. EO No. 1 vested the
PCGG with the power (a) to conduct investigation as may be necessary in
order to accomplish and carry out the purposes of this order and the power
(h) to promulgate such rules and regulations as may be necessary to carry
out the purpose of this order. Accordingly, the PCGG, through its then
Chairman Jovito R. Salonga, created an AFP Anti-Graft Board (AFP
Board) tasked to investigate reports of unexplained wealth and corrupt
practices by AFP personnel, whether in the active service or retired.2[2]
Based on its mandate, the AFP Board investigated various reports of
alleged unexplained wealth of respondent Major General Josephus Q.
Ramas (Ramas). On 27 July 1987, the AFP Board issued a Resolution on
its findings and recommendation on the reported unexplained wealth of
Ramas. The relevant part of the Resolution reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the
owner of a house and lot located at 15-Yakan St., La Vista,
Quezon City. He is also the owner of a house and lot located
in Cebu City. The lot has an area of 3,327 square meters.
The value of the property located in Quezon City may
be estimated modestly at P700,000.00.
The equipment/items and communication facilities
which were found in the premises of Elizabeth Dimaano and
were confiscated by elements of the PC Command of
Batangas were all covered by invoice receipt in the name of
CAPT. EFREN SALIDO, RSO Command Coy, MSC, PA.
These items could not have been in the possession of
Elizabeth Dimaano if not given for her use by respondent
Commanding General of the Philippine Army.
Aside from the military equipment/items and
communications equipment, the raiding team was also able to
confiscate money in the amount of P2,870,000.00 and
$50,000 US Dollars in the house of Elizabeth Dimaano on 3
March 1986.
Affidavits of members of the Military Security Unit,
Military Security Command, Philippine Army, stationed at
Camp Eldridge, Los Baos, Laguna, disclosed that Elizabeth
Dimaano is the mistress of respondent. That respondent
usually goes and stays and sleeps in the alleged house of
Elizabeth Dimaano in Barangay Tengga, Itaas, Batangas City
and when he arrives, Elizabeth Dimaano embraces and kisses
respondent. That on February 25, 1986, a person who rode in
a car went to the residence of Elizabeth Dimaano with four (4)
attache cases filled with money and owned by MGen Ramas.
Sworn statement in the record disclosed also that
Elizabeth Dimaano had no visible means of income and is
supported by respondent for she was formerly a mere
secretary.
Taking in toto the evidence, Elizabeth Dimaano could
not have used the military equipment/items seized in her
house on March 3, 1986 without the consent of respondent, he
being the Commanding General of the Philippine Army. It is
also impossible for Elizabeth Dimaano to claim that she owns
the P2,870,000.00 and $50,000 US Dollars for she had no
visible source of income.
This money was never declared in the Statement of
Assets and Liabilities of respondent. There was an intention to
cover the existence of these money because these are all illgotten and unexplained wealth. Were it not for the affidavits
of the members of the Military Security Unit assigned at
Camp Eldridge, Los Baos, Laguna, the existence and
ownership of these money would have never been known.
The Statement of Assets and Liabilities of respondent
were also submitted for scrutiny and analysis by the Boards

IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima
facie case exists against respondent for ill-gotten and
unexplained wealth in the amount of P2,974,134.00 and
$50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus
Q. Ramas (ret.) be prosecuted and tried for violation of RA
3019, as amended, otherwise known as Anti-Graft and
Corrupt Practices Act and RA 1379, as amended, otherwise
known as The Act for the Forfeiture of Unlawfully Acquired
Property.3[3]
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture
under Republic Act No. 1379 (RA No. 1379) 4[4] against Ramas.
Before Ramas could answer the petition, then Solicitor General
Francisco I. Chavez filed an Amended Complaint naming the Republic of
the Philippines (petitioner), represented by the PCGG, as plaintiff and
Ramas as defendant. The Amended Complaint also impleaded Elizabeth
Dimaano (Dimaano) as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding
General of the Philippine Army until 1986. On the other hand, Dimaano
was a confidential agent of the Military Security Unit, Philippine Army,
assigned as a clerk-typist at the office of Ramas from 1 January 1978 to
February 1979. The Amended Complaint further alleged that Ramas
acquired funds, assets and properties manifestly out of proportion to his
salary as an army officer and his other income from legitimately acquired
property by taking undue advantage of his public office and/or using his
power, authority and influence as such officer of the Armed Forces of the
Philippines and as a subordinate and close associate of the deposed
President Ferdinand Marcos.5[5]
The Amended Complaint also alleged that the AFP Board, after a
previous inquiry, found reasonable ground to believe that respondents have
violated RA No. 1379.6[6] The Amended Complaint prayed for, among
others, the forfeiture of respondents properties, funds and equipment in
favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses
and Compulsory Counterclaim to the Amended Complaint. In his Answer,
Ramas contended that his property consisted only of a residential house at
La Vista Subdivision, Quezon City, valued at P700,000, which was not out
of proportion to his salary and other legitimate income. He denied
ownership of any mansion in Cebu City and the cash, communications
equipment and other items confiscated from the house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint.
Admitting her employment as a clerk-typist in the office of Ramas from
January-November 1978 only, Dimaano claimed ownership of the monies,
communications equipment, jewelry and land titles taken from her house by
the Philippine Constabulary raiding team.
After termination of the pre-trial, 7[7] the court set the case for trial on
the merits on 9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the hearing
due to its lack of preparation for trial and the absence of witnesses and vital
documents to support its case. The court reset the hearing to 17 and 18
April 1989.

3
4
5
6
7

On 13 April 1989, petitioner filed a motion for leave to amend the

complaint in order to charge the delinquent properties with being subject
to forfeiture as having been unlawfully acquired by defendant Dimaano
alone x x x.8[8]

The Sandiganbayan dismissed the Amended Complaint on the

following grounds:
(1.)The actions taken by the PCGG are not in accordance with
the rulings of the Supreme Court in Cruz, Jr. v.
Sandiganbayan10[10] and Republic v. Migrino11[11]
which involve the same issues.

Nevertheless, in an order dated 17 April 1989, the Sandiganbayan

proceeded with petitioners presentation of evidence on the ground that the
motion for leave to amend complaint did not state when petitioner would
file the amended complaint. The Sandiganbayan further stated that the
subject matter of the amended complaint was on its face vague and not
related to the existing complaint. The Sandiganbayan also held that due to
the time that the case had been pending in court, petitioner should proceed
to present its evidence.

(2.)No previous inquiry similar to preliminary investigations

in criminal cases was conducted against Ramas
and Dimaano.

After presenting only three witnesses, petitioner asked for a

postponement of the trial.
On 28 September 1989, during the continuation of the trial,
petitioner manifested its inability to proceed to trial because of the absence
of other witnesses or lack of further evidence to present. Instead, petitioner
reiterated its motion to amend the complaint to conform to the evidence
already presented or to change the averments to show that Dimaano alone
unlawfully acquired the monies or properties subject of the forfeiture.

(3.)

The evidence adduced against Ramas does not

constitute a prima facie case against him.

(4.)

There was an illegal search and seizure of the

items confiscated.
The Issues

Petitioner raises the following issues:

A.

RESPONDENT
COURT
SERIOUSLY
ERRED
IN
CONCLUDING
THAT
PETITIONERS
EVIDENCE
CANNOT MAKE A CASE FOR
FORFEITURE
AND
THAT
THERE WAS NO SHOWING OF
CONSPIRACY, COLLUSION OR
RELATIONSHIP
BY
CONSANGUINITY
OR
AFFINITY BY AND BETWEEN
RESPONDENT RAMAS AND
RESPONDENT
DIMAANO
NOTWITHSTANDING
THE
FACT
THAT
SUCH
CONCLUSIONS
WERE
CLEARLY UNFOUNDED AND
PREMATURE, HAVING BEEN
RENDERED PRIOR TO THE
COMPLETION
OF
THE
PRESENTATION
OF
THE
EVIDENCE
OF
THE
PETITIONER.

B.

RESPONDENT
COURT
SERIOUSLY
ERRED
IN
HOLDING THAT THE ACTIONS
TAKEN BY THE PETITIONER,
INCLUDING THE FILING OF
THE ORIGINAL COMPLAINT
AND
THE
AMENDED
COMPLAINT, SHOULD BE
STRUCK OUT IN LINE WITH
THE
RULINGS
OF
THE
SUPREME COURT IN CRUZ, JR.
v.
SANDIGANBAYAN,
194
SCRA 474 AND REPUBLIC v.
MIGRINO, 189 SCRA 289,
NOTWITHSTANDING
THE
FACT THAT:

The Sandiganbayan noted that petitioner had already delayed the

case for over a year mainly because of its many postponements. Moreover,
petitioner would want the case to revert to its preliminary stage when in fact
the case had long been ready for trial. The Sandiganbayan ordered
petitioner to prepare for presentation of its additional evidence, if any.
During the trial on 23 March 1990, petitioner again admitted its
inability to present further evidence. Giving petitioner one more chance to
present further evidence or to amend the complaint to conform to its
evidence, the Sandiganbayan reset the trial to 18 May 1990. The
Sandiganbayan, however, hinted that the re-setting was without prejudice to
any action that private respondents might take under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability to
proceed to trial because it had no further evidence to present. Again, in the
interest of justice, the Sandiganbayan granted petitioner 60 days within
which to file an appropriate pleading. The Sandiganbayan, however, warned
petitioner that failure to act would constrain the court to take drastic action.
Private respondents then filed their motions to dismiss based on
Republic v. Migrino.9[9] The Court held in Migrino that the PCGG does not
have jurisdiction to investigate and prosecute military officers by reason of
mere position held without a showing that they are subordinates of
former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the
dispositive portion of which states:
WHEREFORE, judgment is hereby rendered
dismissing the Amended Complaint, without pronouncement
as to costs. The counterclaims are likewise dismissed for lack
of merit, but the confiscated sum of money, communications
equipment, jewelry and land titles are ordered returned to
Elizabeth Dimaano.
The records of this case are hereby remanded and
referred to the Hon. Ombudsman, who has primary
jurisdiction over the forfeiture cases under R.A. No. 1379, for
such appropriate action as the evidence warrants. This case is
also referred to the Commissioner of the Bureau of Internal
Revenue for a determination of any tax liability of respondent
Elizabeth Dimaano in connection herewith.

1.

The cases of Cruz, Jr. v.

Sandiganbayan, supra,
and
Republic
v.
Migrino, supra, are
clearly not applicable to
this case;

2.

Any procedural defect

in the institution of the
complaint in Civil Case
No. 0037 was cured
and/or
waived
by
respondents with the
filing of their respective

SO ORDERED.
On 4 December
Reconsideration.

1991,

petitioner

filed

its

Motion

for

In answer to the Motion for Reconsideration, private respondents

filed a Joint Comment/Opposition to which petitioner filed its Reply on 10
January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution
denying the Motion for Reconsideration.
Ruling of the Sandiganbayan

10

11

answers
with
counterclaim; and
3.

C.

The separate motions to

dismiss were evidently
improper considering
that they were filed
after commencement of
the presentation of the
evidence
of
the
petitioner and even
before the latter was
allowed to formally
offer its evidence and
rest its case;

RESPONDENT
COURT
SERIOUSLY
ERRED
IN
HOLDING
THAT
THE
ARTICLES AND THINGS SUCH
AS
SUMS
OF
MONEY,
COMMUNICATIONS
EQUIPMENT, JEWELRY AND
LAND TITLES CONFISCATED
FROM
THE
HOUSE
OF
RESPONDENT
DIMAANO
WERE ILLEGALLY SEIZED
AND THEREFORE EXCLUDED
AS EVIDENCE.12[12]
The Courts Ruling

First Issue: PCGGs Jurisdiction to Investigate Private Respondents

owned or controlled by them, during

his administration, directly or
through nominees, by taking undue
advantage of their public office and/
or using their powers, authority,
influence,
connections
or
relationship.
(b)

The investigation of such cases of

graft and corruption as the President
may assign to the Commission from
time to time.
x x x.

The PCGG, through the AFP Board, can only investigate the
unexplained wealth and corrupt practices of AFP personnel who fall under
either of the two categories mentioned in Section 2 of EO No. 1. These are:
(1) AFP personnel who have accumulated ill-gotten wealth during the
administration of former President Marcos by being the latters immediate
family, relative, subordinate or close associate, taking undue advantage of
their public office or using their powers, influence x x x; 17[17] or (2) AFP
personnel involved in other cases of graft and corruption provided the
President assigns their cases to the PCGG.18[18]
Petitioner, however, does not claim that the President assigned
Ramas case to the PCGG. Therefore, Ramas case should fall under the
first category of AFP personnel before the PCGG could exercise its
jurisdiction over him. Petitioner argues that Ramas was undoubtedly a
subordinate of former President Marcos because of his position as the
Commanding General of the Philippine Army. Petitioner claims that
Ramas position enabled him to receive orders directly from his
commander-in-chief, undeniably making him a subordinate of former
President Marcos.
We hold that Ramas was not a subordinate of former President
Marcos in the sense contemplated under EO No. 1 and its amendments.

This case involves a revisiting of an old issue already decided by this

Court in Cruz, Jr. v. Sandiganbayan13[13] and Republic v. Migrino.14[14]
The primary issue for resolution is whether the PCGG has the
jurisdiction to investigate and cause the filing of a forfeiture petition against
Ramas and Dimaano for unexplained wealth under RA No. 1379.

Mere position held by a military officer does not automatically make

him a subordinate as this term is used in EO Nos. 1, 2, 14 and 14-A
absent a showing that he enjoyed close association with former President
Marcos. Migrino discussed this issue in this wise:
A close reading of EO No. 1 and related executive
orders will readily show what is contemplated within the term
subordinate. The Whereas Clauses of EO No. 1 express the
urgent need to recover the ill-gotten wealth amassed by
former President Ferdinand E. Marcos, his immediate family,
relatives, and close associates both here and abroad.

We hold that PCGG has no such jurisdiction.

The PCGG created the AFP Board to investigate the unexplained
wealth and corrupt practices of AFP personnel, whether in the active service
or retired.15[15] The PCGG tasked the AFP Board to make the necessary
recommendations to appropriate government agencies on the action to be
taken based on its findings. 16[16] The PCGG gave this task to the AFP Board
pursuant to the PCGGs power under Section 3 of EO No. 1 to conduct
investigation as may be necessary in order to accomplish and to carry out
the purposes of this order. EO No. 1 gave the PCGG specific
responsibilities, to wit:

EO No. 2 freezes all assets and properties in the

Philippines in which former President Marcos and/or his wife,
Mrs. Imelda Marcos, their close relatives, subordinates,
business associates, dummies, agents, or nominees have any
interest or participation.
Applying the rule in statutory construction known as
ejusdem generis that is-

SEC. 2. The Commission shall be charged with the task

of assisting the President in regard to the following matters:
(a)The

[W]here general words follow an

enumeration of persons or things by words of a
particular and specific meaning, such general
words are not to be construed in their widest
extent, but are to be held as applying only to
persons or things of the same kind or class as
those specifically mentioned [Smith, Bell & Co,
Ltd. vs. Register of Deeds of Davao, 96 Phil. 53,
58, citing Black on Interpretation of Laws, 2nd
Ed., 203].

recovery of all ill-gotten wealth

accumulated by former President
Ferdinand E. Marcos, his immediate
family, relatives, subordinates and
close associates, whether located in
the Philippines or abroad, including
the takeover and sequestration of all
business enterprises and entities

12

[T]he term subordinate as used in EO

Nos. 1 & 2 refers to one who enjoys a close
association with former President Marcos and/or
his wife, similar to the immediate family
member, relative, and close associate in EO
No. 1 and the close relative, business associate,
dummy, agent, or nominee in EO No. 2.

13
14

xxx

15

17

16

18

It does not suffice, as in this case, that the

respondent is or was a government official or
employee during the administration of former
President Marcos. There must be a prima facie
showing that the respondent unlawfully
accumulated wealth by virtue of his close
association or relation with former Pres.
Marcos and/or his wife. (Emphasis supplied)

Such omission is fatal. Petitioner forgets that it is precisely a prima

facie showing that the ill-gotten wealth was accumulated by a
subordinate of former President Marcos that vests jurisdiction on PCGG.
EO No. 122[22] clearly premises the creation of the PCGG on the urgent need
to recover all ill-gotten wealth amassed by former President Marcos, his
immediate family, relatives, subordinates and close associates. Therefore, to
say that such omission was not fatal is clearly contrary to the intent behind
the creation of the PCGG.

Ramas position alone as Commanding General of the Philippine

Army with the rank of Major General 19[19] does not suffice to make him a
subordinate of former President Marcos for purposes of EO No. 1 and its
amendments. The PCGG has to provide a prima facie showing that Ramas
was a close associate of former President Marcos, in the same manner that
business associates, dummies, agents or nominees of former President
Marcos were close to him. Such close association is manifested either by
Ramas complicity with former President Marcos in the accumulation of illgotten wealth by the deposed President or by former President Marcos
acquiescence in Ramas own accumulation of ill-gotten wealth if any.

In Cruz, Jr. v. Sandiganbayan,23[23] the Court outlined the cases that

fall under the jurisdiction of the PCGG pursuant to EO Nos. 1, 2, 24[24] 14,25
[25]
14-A:26[26]
A careful reading of Sections 2(a) and 3 of Executive
Order No. 1 in relation with Sections 1, 2 and 3 of Executive
Order No. 14, shows what the authority of the respondent
PCGG to investigate and prosecute covers:
(a)the investigation and prosecution of the civil
action for the recovery of ill-gotten
wealth under Republic Act No. 1379,
accumulated by former President
Marcos, his immediate family,
relatives, subordinates and close
associates, whether located in the
Philippines or abroad, including the
take-over or sequestration of all
business enterprises and entities owned
or controlled by them, during his
administration, directly or through his
nominees, by taking undue advantage
of their public office and/or using
their
powers,
authority
and
influence,
connections
or
relationships; and

This, the PCGG failed to do.

Petitioners attempt to differentiate the instant case from Migrino
does not convince us. Petitioner argues that unlike in Migrino, the AFP
Board Resolution in the instant case states that the AFP Board conducted
the investigation pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA
No. 1379. Petitioner asserts that there is a presumption that the PCGG was
acting within its jurisdiction of investigating crony-related cases of graft
and corruption and that Ramas was truly a subordinate of the former
President. However, the same AFP Board Resolution belies this contention.
Although the Resolution begins with such statement, it ends with the
following recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj.
Gen. Josephus Q. Ramas (ret.) be prosecuted and
tried for violation of RA 3019, as amended,
otherwise known as Anti-Graft and Corrupt
Practices Act and RA 1379, as amended,
otherwise known as The Act for the Forfeiture
of Unlawfully Acquired Property. 20[20]

(b)

However, other violations of the Anti-Graft and

Corrupt Practices Act not otherwise falling under the
foregoing categories, require a previous authority of the
President for the respondent PCGG to investigate and
prosecute in accordance with Section 2 (b) of Executive
Order No. 1. Otherwise, jurisdiction over such cases is
vested in the Ombudsman and other duly authorized
investigating agencies such as the provincial and city
prosecutors, their assistants, the Chief State Prosecutor
and his assistants and the state prosecutors. (Emphasis
supplied)

Thus, although the PCGG sought to investigate and prosecute private

respondents under EO Nos. 1, 2, 14 and 14-A, the result yielded a finding
of violation of Republic Acts Nos. 3019 and 1379 without any relation to
EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO No. 1 and its
amendments proves fatal to petitioners case. EO No. 1 created the PCGG
for a specific and limited purpose, and necessarily its powers must be
construed to address such specific and limited purpose.
Moreover, the resolution of the AFP Board and even the Amended
Complaint do not show that the properties Ramas allegedly owned were
accumulated by him in his capacity as a subordinate of his commanderin-chief. Petitioner merely enumerated the properties Ramas allegedly
owned and suggested that these properties were disproportionate to his
salary and other legitimate income without showing that Ramas amassed
them because of his close association with former President Marcos.
Petitioner, in fact, admits that the AFP Board resolution does not contain a
finding that Ramas accumulated his wealth because of his close association
with former President Marcos, thus:
10. While it is true that the resolution of the Anti-Graft
Board of the New Armed Forces of the Philippines did not
categorically find a prima facie evidence showing that
respondent Ramas unlawfully accumulated wealth by
virtue of his close association or relation with former
President Marcos and/or his wife, it is submitted that such
omission was not fatal. The resolution of the Anti-Graft
Board should be read in the context of the law creating the
same and the objective of the investigation which was, as
stated in the above, pursuant to Republic Act Nos. 3019 and
1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a;21[21]
(Emphasis supplied)

the investigation and prosecution of

such offenses committed in the
acquisition of said ill-gotten wealth as
contemplated under Section 2(a) of
Executive Order No. 1.

The proper government agencies, and not the PCGG, should

investigate and prosecute forfeiture petitions not falling under EO No. 1
and its amendments. The preliminary investigation of unexplained wealth
amassed on or before 25 February 1986 falls under the jurisdiction of the
Ombudsman, while the authority to file the corresponding forfeiture
petition rests with the Solicitor General.27[27] The Ombudsman Act or
Republic Act No. 6770 (RA No. 6770) vests in the Ombudsman the
power to conduct preliminary investigation and to file forfeiture

22
23
24

19

25

20

26

21

27

proceedings involving unexplained wealth amassed after 25 February

1986.28[28]
After the pronouncements of the Court in Cruz, the PCGG still
pursued this case despite the absence of a prima facie finding that Ramas
was a subordinate of former President Marcos. The petition for forfeiture
filed with the Sandiganbayan should be dismissed for lack of authority by
the PCGG to investigate respondents since there is no prima facie showing
that EO No. 1 and its amendments apply to respondents. The AFP Board
Resolution and even the Amended Complaint state that there are violations
of RA Nos. 3019 and 1379. Thus, the PCGG should have recommended
Ramas case to the Ombudsman who has jurisdiction to conduct the
preliminary investigation of ordinary unexplained wealth and graft cases.
As stated in Migrino:

Based on the findings of the Sandiganbayan and the records of this

case, we find that petitioner has only itself to blame for non-completion of
the presentation of its evidence. First, this case has been pending for four
years before the Sandiganbayan dismissed it. Petitioner filed its Amended
Complaint on 11 August 1987, and only began to present its evidence on 17
April 1989. Petitioner had almost two years to prepare its evidence.
However, despite this sufficient time, petitioner still delayed the
presentation of the rest of its evidence by filing numerous motions for
postponements and extensions. Even before the date set for the presentation
of its evidence, petitioner filed, on 13 April 1989, a Motion for Leave to
Amend the Complaint.34[34] The motion sought to charge the delinquent
properties (which comprise most of petitioners evidence) with being
subject to forfeiture as having been unlawfully acquired by defendant
Dimaano alone x x x.

[But] in view of the patent lack of authority of the

PCGG to investigate and cause the prosecution of private
respondent for violation of Rep. Acts Nos. 3019 and 1379, the
PCGG must also be enjoined from proceeding with the case,
without prejudice to any action that may be taken by the
proper prosecutory agency. The rule of law mandates that an
agency of government be allowed to exercise only the powers
granted to it.

The Sandiganbayan, however, refused to defer the presentation of

petitioners evidence since petitioner did not state when it would file the
amended complaint. On 18 April 1989, the Sandiganbayan set the
continuation of the presentation of evidence on 28-29 September and 9-11
October 1989, giving petitioner ample time to prepare its evidence. Still, on
28 September 1989, petitioner manifested its inability to proceed with the
presentation of its evidence. The Sandiganbayan issued an Order expressing
its view on the matter, to wit:

Petitioners argument that private respondents have waived any

defect in the filing of the forfeiture petition by submitting their respective
Answers with counterclaim deserves no merit as well.

The Court has gone through extended inquiry and a

narration of the above events because this case has been ready
for trial for over a year and much of the delay hereon has been
due to the inability of the government to produce on
scheduled dates for pre-trial and for trial documents and
witnesses, allegedly upon the failure of the military to supply
them for the preparation of the presentation of evidence
thereon. Of equal interest is the fact that this Court has been
held to task in public about its alleged failure to move cases
such as this one beyond the preliminary stage, when, in view
of the developments such as those of today, this Court is now
faced with a situation where a case already in progress will
revert back to the preliminary stage, despite a five-month
pause where appropriate action could have been undertaken
by the plaintiff Republic.35[35]

Petitioner has no jurisdiction over private respondents. Thus, there is

no jurisdiction to waive in the first place. The PCGG cannot exercise
investigative or prosecutorial powers never granted to it. PCGGs powers
are specific and limited. Unless given additional assignment by the
President, PCGGs sole task is only to recover the ill-gotten wealth of the
Marcoses, their relatives and cronies. 29[29] Without these elements, the
PCGG cannot claim jurisdiction over a case.
Private respondents questioned the authority and jurisdiction of the
PCGG to investigate and prosecute their cases by filing their Motion to
Dismiss as soon as they learned of the pronouncement of the Court in
Migrino. This case was decided on 30 August 1990, which explains why
private respondents only filed their Motion to Dismiss on 8 October 1990.
Nevertheless, we have held that the parties may raise lack of jurisdiction at
any stage of the proceeding.30[30] Thus, we hold that there was no waiver of
jurisdiction in this case. Jurisdiction is vested by law and not by the parties
to an action.31[31]
Consequently, the petition should be dismissed for lack of
jurisdiction by the PCGG to conduct the preliminary investigation. The
Ombudsman may still conduct the proper preliminary investigation for
violation of RA No. 1379, and if warranted, the Solicitor General may file
the forfeiture petition with the Sandiganbayan. 32[32] The right of the State to
forfeit unexplained wealth under RA No. 1379 is not subject to prescription,
laches or estoppel.33[33]
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence

Petitioner also contends that the Sandiganbayan erred in dismissing

the case before completion of the presentation of petitioners evidence.
We disagree.

28

On 9 October 1989, the PCGG manifested in court that it was

conducting a preliminary investigation on the unexplained wealth of private
respondents as mandated by RA No. 1379. 36[36] The PCGG prayed for an
additional four months to conduct the preliminary investigation. The
Sandiganbayan granted this request and scheduled the presentation of
evidence on 26-29 March 1990. However, on the scheduled date, petitioner
failed to inform the court of the result of the preliminary investigation the
PCGG supposedly conducted. Again, the Sandiganbayan gave petitioner
until 18 May 1990 to continue with the presentation of its evidence and to
inform the court of what lies ahead insofar as the status of the case is
concerned x x x.37[37] Still on the date set, petitioner failed to present its
evidence. Finally, on 11 July 1990, petitioner filed its Re-Amended
Complaint.38[38] The Sandiganbayan correctly observed that a case already
pending for years would revert to its preliminary stage if the court were to
accept the Re-Amended Complaint.
Based on these circumstances, obviously petitioner has only itself to
blame for failure to complete the presentation of its evidence. The
Sandiganbayan gave petitioner more than sufficient time to finish the
presentation of its evidence. The Sandiganbayan overlooked petitioners
delays and yet petitioner ended the long-string of delays with the filing of a
Re-Amended Complaint, which would only prolong even more the
disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz
prompted the Sandiganbayan to dismiss the case since the PCGG has no

29

34

30

35

31

36

32

37

33

38

jurisdiction to investigate and prosecute the case against private

respondents. This alone would have been sufficient legal basis for the
Sandiganbayan to dismiss the forfeiture case against private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the
case before completion of the presentation of petitioners evidence.
Third Issue: Legality of the Search and Seizure

limited the extent and scope of such directives and orders. With the
abrogation of the 1973 Constitution by the successful revolution, there was
no municipal law higher than the directives and orders of the revolutionary
government. Thus, during the interregnum, a person could not invoke any
exclusionary right under a Bill of Rights because there was neither a
constitution nor a Bill of Rights during the interregnum. As the Court
explained in Letter of Associate Justice Reynato S. Puno:42[42]
A revolution has been defined as the complete
overthrow of the established government in any country or
state by those who were previously subject to it or as a
sudden, radical and fundamental change in the government or
political system, usually effected with violence or at least
some acts of violence. In Kelsen's book, General Theory of
Law and State, it is defined as that which occurs whenever
the legal order of a community is nullified and replaced by a
new order . . . a way not prescribed by the first order itself.

Petitioner claims that the Sandiganbayan erred in declaring the

properties confiscated from Dimaanos house as illegally seized and
therefore inadmissible in evidence. This issue bears a significant effect on
petitioners case since these properties comprise most of petitioners
evidence against private respondents. Petitioner will not have much
evidence to support its case against private respondents if these properties
are inadmissible in evidence.

It was through the February 1986 revolution, a

relatively peaceful one, and more popularly known as the
people power revolution that the Filipino people tore
themselves away from an existing regime. This revolution
also saw the unprecedented rise to power of the Aquino
government.

On 3 March 1986, the Constabulary raiding team served at

Dimaanos residence a search warrant captioned Illegal Possession of
Firearms and Ammunition. Dimaano was not present during the raid but
Dimaanos cousins witnessed the raid. The raiding team seized the items
detailed in the seizure receipt together with other items not included in the
search warrant. The raiding team seized these items: one baby armalite rifle
with two magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45;
communications equipment, cash consisting of P2,870,000 and US$50,000,
jewelry, and land titles.

From the natural law point of view, the right of

revolution has been defined as an inherent right of a people
to cast out their rulers, change their policy or effect radical
reforms in their system of government or institutions by force
or a general uprising when the legal and constitutional
methods of making such change have proved inadequate or
are so obstructed as to be unavailable. It has been said that
the locus of positive law-making power lies with the people
of the state and from there is derived the right of the people
to abolish, to reform and to alter any existing form of
government without regard to the existing constitution.

Petitioner wants the Court to take judicial notice that the raiding
team conducted the search and seizure on March 3, 1986 or five days after
the successful EDSA revolution.39[39] Petitioner argues that a revolutionary
government was operative at that time by virtue of Proclamation No. 1
announcing that President Aquino and Vice President Laurel were taking
power in the name and by the will of the Filipino people. 40[40] Petitioner
asserts that the revolutionary government effectively withheld the operation
of the 1973 Constitution which guaranteed private respondents
exclusionary right.

xxx

Moreover, petitioner argues that the exclusionary right arising from

an illegal search applies only beginning 2 February 1987, the date of
ratification of the 1987 Constitution. Petitioner contends that all rights
under the Bill of Rights had already reverted to its embryonic stage at the
time of the search. Therefore, the government may confiscate the monies
and items taken from Dimaano and use the same in evidence against her
since at the time of their seizure, private respondents did not enjoy any
constitutional right.

It is widely known that Mrs. Aquinos rise to the

presidency was not due to constitutional processes; in fact, it
was achieved in violation of the provisions of the 1973
Constitution as a Batasang Pambansa resolution had earlier
declared Mr. Marcos as the winner in the 1986 presidential
election. Thus it can be said that the organization of Mrs.
Aquinos Government which was met by little resistance and
her control of the state evidenced by the appointment of the
Cabinet and other key officers of the administration, the
departure of the Marcos Cabinet officials, revamp of the
Judiciary and the Military signaled the point where the legal
system then in effect, had ceased to be obeyed by the
Filipino. (Emphasis supplied)

Petitioner is partly right in its arguments.

The EDSA Revolution took place on 23-25 February 1986. As
succinctly stated in President Aquinos Proclamation No. 3 dated 25 March
1986, the EDSA Revolution was done in defiance of the provisions of the
1973 Constitution.41[41] The resulting government was indisputably a
revolutionary government bound by no constitution or legal limitations
except treaty obligations that the revolutionary government, as the de jure
government in the Philippines, assumed under international law.
The correct issues are: (1) whether the revolutionary government
was bound by the Bill of Rights of the 1973 Constitution during the
interregnum, that is, after the actual and effective take-over of power by
the revolutionary government following the cessation of resistance by
loyalist forces up to 24 March 1986 (immediately before the adoption of the
Provisional Constitution); and (2) whether the protection accorded to
individuals under the International Covenant on Civil and Political Rights
(Covenant) and the Universal Declaration of Human Rights
(Declaration) remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not
operative during the interregnum. However, we rule that the protection
accorded to individuals under the Covenant and the Declaration remained in
effect during the interregnum.
During the interregnum, the directives and orders of the
revolutionary government were the supreme law because no constitution

39

To hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all sequestration orders
issued by the Philippine Commission on Good Government (PCGG)
before the adoption of the Freedom Constitution. The sequestration orders,
which direct the freezing and even the take-over of private property by
mere executive issuance without judicial action, would violate the due
process and search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could validly
question the sequestration orders as violative of the Bill of Rights because
there was no Bill of Rights during the interregnum. However, upon the
adoption of the Freedom Constitution, the sequestered companies assailed
the sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential
Commission on Good Government,43[43] petitioner Baseco, while conceding
there was no Bill of Rights during the interregnum, questioned the
continued validity of the sequestration orders upon adoption of the Freedom
Constitution in view of the due process clause in its Bill of Rights. The
Court ruled that the Freedom Constitution, and later the 1987 Constitution,
expressly recognized the validity of sequestration orders, thus:
If any doubt should still persist in the face of the foregoing

40

42

41

43

considerations as to the validity and propriety of

sequestration, freeze and takeover orders, it should be
dispelled by the fact that these particular remedies and the
authority of the PCGG to issue them have received
constitutional approbation and sanction. As already
mentioned, the Provisional or Freedom Constitution
recognizes the power and duty of the President to enact
measures to achieve the mandate of the people to . . .
(r)ecover ill-gotten properties amassed by the leaders and
supporters of the previous regime and protect the interest of
the people through orders of sequestration or freezing of
assets or accounts. And as also already adverted to, Section
26, Article XVIII of the 1987 Constitution treats of, and
ratifies the authority to issue sequestration or freeze orders
under Proclamation No. 3 dated March 25, 1986.

hoarders will release the hidden health if the ransom price is

paid and the ransom price is the Bill of Rights, specifically the
due process in the search and seizure clauses. So, there is
something positively revolving about either argument. The
Bill of Rights is not for sale to the highest bidder nor can it be
used to ransom captive dollars. This nation will survive and
grow strong, only if it would become convinced of the values
enshrined in the Constitution of a price that is beyond
monetary estimation.
For these reasons, the honorable course for the
Constitutional Commission is to delete all of Section 8 of the
committee report and allow the new Constitution to take effect
in full vigor. If Section 8 is deleted, the PCGG has two
options. First, it can pursue the Salonga and the Romulo
argument that what the PCGG has been doing has been
completely within the pale of the law. If sustained, the PCGG
can go on and should be able to go on, even without the
support of Section 8. If not sustained, however, the PCGG has
only one honorable option, it must bow to the majesty of the
Bill of Rights.
The PCGG extrapolation of the law is defended by
staunch Christians. Let me conclude with what another
Christian replied when asked to toy around with the law. From
his prison cell, Thomas More said, "I'll give the devil benefit
of law for my nations safety sake. I ask the Commission to
give the devil benefit of law for our nations sake. And we
should delete Section 8.
Thank you, Madam President. (Emphasis supplied)

The framers of both the Freedom Constitution and the 1987

Constitution were fully aware that the sequestration orders would clash
with the Bill of Rights. Thus, the framers of both constitutions had to
include specific language recognizing the validity of the sequestration
orders. The following discourse by Commissioner Joaquin G. Bernas
during the deliberations of the Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something
schizophrenic about the arguments in defense of the present
amendment.
For instance, I have carefully studied Minister
Salongas lecture in the Gregorio Araneta University
Foundation, of which all of us have been given a copy. On the
one hand, he argues that everything the Commission is doing
is traditionally legal. This is repeated by Commissioner
Romulo also. Minister Salonga spends a major portion of his
lecture developing that argument. On the other hand, almost
as an afterthought, he says that in the end what matters are the
results and not the legal niceties, thus suggesting that the
PCGG should be allowed to make some legal shortcuts,
another word for niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is
it asking the CONCOM for special protection? The answer is
clear. What they are doing will not stand the test of ordinary
due process, hence they are asking for protection, for
exceptions. Grandes malos, grandes remedios, fine, as the
saying stands, but let us not say grandes malos, grande y
malos remedios. That is not an allowable extrapolation.
Hence, we should not give the exceptions asked for, and let
me elaborate and give three reasons:
First, the whole point of the February Revolution and
of the work of the CONCOM is to hasten constitutional
normalization. Very much at the heart of the constitutional
normalization is the full effectivity of the Bill of Rights. We
cannot, in one breath, ask for constitutional normalization and
at the same time ask for a temporary halt to the full
functioning of what is at the heart of constitutionalism. That
would be hypocritical; that would be a repetition of Marcosian
protestation of due process and rule of law. The New Society
word for that is backsliding. It is tragic when we begin to
backslide even before we get there.
Second, this is really a corollary of the first. Habits tend
to become ingrained. The committee report asks for
extraordinary exceptions from the Bill of Rights for six
months after the convening of Congress, and Congress may
even extend this longer.
Good deeds repeated ripen into virtue; bad deeds
repeated become vice. What the committee report is asking for
is that we should allow the new government to acquire the
vice of disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to
shed. The practitioners of the vice begin to think that they
have a vested right to its practice, and they will fight tooth and
nail to keep the franchise. That would be an unhealthy way of
consolidating the gains of a democratic revolution.
Third, the argument that what matters are the results
and not the legal niceties is an argument that is very
disturbing. When it comes from a staunch Christian like
Commissioner Salonga, a Minister, and repeated verbatim by
another staunch Christian like Commissioner Tingson, it
becomes doubly disturbing and even discombobulating. The
argument makes the PCGG an auctioneer, placing the Bill of
Rights on the auction block. If the price is right, the search
and seizure clause will be sold. Open your Swiss bank
account to us and we will award you the search and seizure
clause. You can keep it in your private safe.
Alternatively, the argument looks on the present
government as hostage to the hoarders of hidden wealth. The

Despite the impassioned plea by Commissioner Bernas against the

amendment excepting sequestration orders from the Bill of Rights, the
Constitutional Commission still adopted the amendment as Section 26,44[44]
Article XVIII of the 1987 Constitution. The framers of the Constitution
were fully aware that absent Section 26, sequestration orders would not
stand the test of due process under the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution
remained in force during the interregnum, absent a constitutional provision
excepting sequestration orders from such Bill of Rights, would clearly
render all sequestration orders void during the interregnum. Nevertheless,
even during the interregnum the Filipino people continued to enjoy, under
the Covenant and the Declaration, almost the same rights found in the Bill
of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure
government, assumed responsibility for the States good faith compliance
with the Covenant to which the Philippines is a signatory. Article 2(1) of the
Covenant requires each signatory State to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights 45[45]
recognized in the present Covenant. Under Article 17(1) of the Covenant,
the revolutionary government had the duty to insure that [n]o one shall be
subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence.
The Declaration, to which the Philippines is also a signatory,
provides in its Article 17(2) that [n]o one shall be arbitrarily deprived of
his property. Although the signatories to the Declaration did not intend it
as a legally binding document, being only a declaration, the Court has
interpreted the Declaration as part of the generally accepted principles of
international law and binding on the State. 46[46] Thus, the revolutionary
government was also obligated under international law to observe the
rights47[47] of individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or the
Declaration during the interregnum. Whether the revolutionary government
could have repudiated all its obligations under the Covenant or the
Declaration is another matter and is not the issue here. Suffice it to say that
the Court considers the Declaration as part of customary international law,
and that Filipinos as human beings are proper subjects of the rules of
international law laid down in the Covenant. The fact is the revolutionary

44
45
46
47

government did not repudiate the Covenant or the Declaration in the same
way it repudiated the 1973 Constitution. As the de jure government, the
revolutionary government could not escape responsibility for the States
good faith compliance with its treaty obligations under international law.

Q.

A.

It was only upon the adoption of the Provisional Constitution on 25

March 1986 that the directives and orders of the revolutionary government
became subject to a higher municipal law that, if contravened, rendered
such directives and orders void. The Provisional Constitution adopted
verbatim the Bill of Rights of the 1973 Constitution. 48[48] The Provisional
Constitution served as a self-limitation by the revolutionary government to
avoid abuses of the absolute powers entrusted to it by the people.

xxx
AJ AMORES
Q.
A.

During the interregnum when no constitution or Bill of Rights

existed, directives and orders issued by government officers were valid so
long as these officers did not exceed the authority granted them by the
revolutionary government. The directives and orders should not have also
violated the Covenant or the Declaration. In this case, the revolutionary
government presumptively sanctioned the warrant since the revolutionary
government did not repudiate it. The warrant, issued by a judge upon proper
application, specified the items to be searched and seized. The warrant is
thus valid with respect to the items specifically described in the warrant.

Q.
A.
Q.

However, the Constabulary raiding team seized items not included in

the warrant. As admitted by petitioners witnesses, the raiding team
confiscated items not included in the warrant, thus:

A.
Q.

Direct Examination of Capt. Rodolfo Sebastian

AJ AMORES
A.

Q.According to the search warrant, you are supposed

to seize only for weapons. What else, aside
from the weapons, were seized from the house
of Miss Elizabeth Dimaano?
A.

The communications equipment, money in

Philippine currency and US dollars, some
jewelries, land titles, sir.

Q.

Now, the search warrant speaks only of

weapons to be seized from the house of
Elizabeth Dimaano. Do you know the reason
why your team also seized other properties not
mentioned in said search warrant?
During the conversation right after the
conduct of said raid, I was informed that the
reason why they also brought the other items
not included in the search warrant was
because the money and other jewelries were
contained in attach cases and cartons with
markings Sony Trinitron, and I think three
(3) vaults or steel safes. Believing that the
attach cases and the steel safes were
containing firearms, they forced open these
containers only to find out that they contained
money.

A.

Q.
A.

A.

And this party believed there were weapons

deposited in the house of Miss Elizabeth
Dimaano?
Yes, your Honor.
And they so swore before the Municipal Trial
Judge?
Yes, your Honor.
But they did not mention to you, the applicant
for the search warrant, any other properties or
contraband which could be found in the
residence of Miss Elizabeth Dimaano?
They just gave us still unconfirmed report
about some hidden items, for instance, the
communications equipment and money.
However, I did not include that in the
application for search warrant considering that
we have not established concrete evidence
about that. So when
So that when you applied for search warrant,
you had reason to believe that only weapons
were in the house of Miss Elizabeth Dimaano?
Yes, your Honor.50[50]

Q.You stated that a .45 caliber pistol was seized along

with one armalite rifle M-16 and how many
ammunition?
A.
Forty, sir.
Q.

You said you found money instead of

weapons, do you know the reason why your
team seized this money instead of weapons?
I think the overall team leader and the other
two officers assisting him decided to bring
along also the money because at that time it
was already dark and they felt most secured if
they will bring that because they might be
suspected also of taking money out of those
items, your Honor.49[49]

A.

And this became the subject of your complaint

with the issuing Court, with the fiscals office
who charged Elizabeth Dimaano for Illegal
Possession of Firearms and Ammunition?
Yes, sir.

Q.
A.

Do you know what happened to that case?

I think it was dismissed, sir.

Q.
A.

In the fiscals office?

Yes, sir.

Q.

Because the armalite rifle you seized, as well

as the .45 caliber pistol had a Memorandum
Receipt in the name of Felino Melegrito, is
that not correct?
I think that was the reason, sir.

A.
Q.

Cross-examination
Atty. Banaag

A.

Q.Were you present when the search warrant in

connection with this case was applied before
the Municipal Trial Court of Batangas, Branch
1?
A.
Yes, sir.

48
49

Before you applied for a search warrant, did

you conduct surveillance in the house of Miss
Elizabeth Dimaano?
The Intelligence Operatives conducted
surveillance together with the MSU elements,
your Honor.

xxx

xxx
Q.

And the search warrant applied for by you

was for the search and seizure of five (5) baby
armalite rifles M-16 and five (5) boxes of
ammunition?
Yes, sir.

xxx

50

There were other articles seized which were

not included in the search warrant, like for
instance, jewelries. Why did you seize the
jewelries?
I think it was the decision of the overall team
leader and his assistant to bring along also the
jewelries and other items, sir. I do not really
know where it was taken but they brought
along also these articles. I do not really know
their reason for bringing the same, but I just
learned that these were taken because they
might get lost if they will just leave this
behind.

Q.
A.

Q.
A.

How about the money seized by your raiding

team, they were not also included in the search
warrant?
Yes sir, but I believe they were also taken
considering that the money was discovered to
be contained in attach cases. These attach
cases were suspected to be containing pistols
or other high powered firearms, but in the
course of the search the contents turned out to
be money. So the team leader also decided to
take this considering that they believed that if
they will just leave the money behind, it might
get lost also.
That holds true also with respect to the other
articles that were seized by your raiding team,
like Transfer Certificates of Title of lands?
Yes, sir. I think they were contained in one of
the vaults that were opened.51[51]

It is obvious from the testimony of Captain Sebastian that the

warrant did not include the monies, communications equipment, jewelry
and land titles that the raiding team confiscated. The search warrant did not
particularly describe these items and the raiding team confiscated them on
its own authority. The raiding team had no legal basis to seize these items
without showing that these items could be the subject of warrantless search
and seizure.52[52] Clearly, the raiding team exceeded its authority when it
seized these items.
The seizure of these items was therefore void, and unless these items
are contraband per se,53[53] and they are not, they must be returned to the
person from whom the raiding seized them. However, we do not declare
that such person is the lawful owner of these items, merely that the search
and seizure warrant could not be used as basis to seize and withhold these
items from the possessor. We thus hold that these items should be returned
immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The
questioned Resolutions of the Sandiganbayan dated 18 November 1991 and
25 March 1992 in Civil Case No. 0037, remanding the records of this case
to the Ombudsman for such appropriate action as the evidence may
warrant, and referring this case to the Commissioner of the Bureau of
Internal Revenue for a determination of any tax liability of respondent
Elizabeth Dimaano, are AFFIRMED.
SO ORDERED.
Bellosillo, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr.
and Azcuna, JJ., concur.
Davide, Jr., C.J., in the result. I concur with Mr. Justice Vitug in his
concurring opinion.
Puno and Vitug, JJ., see separate opinion
Panganiban, J., in the result.
Quisumbing and Sandoval-Gutierrez, JJ., on official leave.
Ynares-Santiago, J., in the result. I concur in the separate opinion of
J. Reynato Puno.
Tinga, J., separate opinion reserved.
EN BANC

where man stands accountable to an authority higher than the state. To be

held on balance are the states interest and the respondents religious
freedom. In this highly sensitive area of law, the task of balancing between
authority and liberty is most delicate because to the person invoking
religious freedom, the consequences of the case are not only temporal. The
task is not made easier by the American origin of our religion clauses and
the wealth of U.S. jurisprudence on these clauses for in the United States,
there is probably no more intensely controverted area of constitutional
interpretation than the religion clauses. 54[1] The U.S. Supreme Court itself
has acknowledged that in this constitutional area, there is considerable
internal inconsistency in the opinions of the Court. 55[2] As stated by a
professor of law, (i)t is by now notorious that legal doctrines and judicial
decisions in the area of religious freedom are in serious disarray. In perhaps
no other area of constitutional law have confusion and inconsistency
achieved such undisputed sovereignty. 56[3] Nevertheless, this thicket is the
only path to take to conquer the mountain of a legal problem the case at bar
presents. Both the penetrating and panoramic view this climb would
provide will largely chart the course of religious freedom in Philippine
jurisdiction. That the religious freedom question arose in an administrative
case involving only one person does not alter the paramount importance of
the question for the constitution commands the positive protection by
government of religious freedom -not only for a minority, however smallnot only for a majority, however large- but for each of us.57[4]
I. Facts

The facts of the case will determine whether respondent will prevail
in her plea of religious freedom. It is necessary therefore to lay down the
facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant
Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of
Branch 253, Regional Trial Court of Las Pias City, requesting for an
investigation of rumors that respondent Soledad Escritor, court interpreter
in said court, is living with a man not her husband. They allegedly have a
child of eighteen to twenty years old. Estrada is not personally related either
to Escritor or her partner and is a resident not of Las Pias City but of
Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he
believes that she is committing an immoral act that tarnishes the image of
the court, thus she should not be allowed to remain employed therein as it
might appear that the court condones her act.58[5]
Judge Caoibes referred the letter to Escritor who stated that there is
no truth as to the veracity of the allegation and challenged Estrada to
appear in the open and prove his allegation in the proper forum. 59[6] Judge
Caoibes set a preliminary conference on October 12, 2000. Escritor moved
for the inhibition of Judge Caoibes from hearing her case to avoid suspicion
and bias as she previously filed an administrative complaint against him
and said case was still pending in the Office of the Court Administrator
(OCA). Escritors motion was denied. The preliminary conference
proceeded with both Estrada and Escritor in attendance. Estrada confirmed
that he filed the letter-complaint for immorality against Escritor because in
his frequent visits to the Hall of Justice of Las Pias City, he learned from
conversations therein that Escritor was living with a man not her husband
and that she had an eighteen to twenty-year old son by this man. This
prompted him to write to Judge Caoibes as he believed that employees of
the judiciary should be respectable and Escritors live-in arrangement did
not command respect.60[7]
Respondent Escritor testified that when she entered the judiciary in

[A.M. No. P-02-1651. August 4, 2003]

54
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR,
respondent.
DECISION
PUNO, J.:

55
56

The case at bar takes us to a most difficult area of constitutional law

51

57

52

58

53

59

1999,61[8] she was already a widow, her husband having died in 1998. 62[9]
She admitted that she has been living with Luciano Quilapio, Jr. without the
benefit of marriage for twenty years and that they have a son. But as a
member of the religious sect known as the Jehovahs Witnesses and the
Watch Tower and Bible Tract Society, their conjugal arrangement is in
conformity with their religious beliefs. In fact, after ten years of living
together, she executed on July 28, 1991 a Declaration of Pledging
Faithfulness, viz:

xxxxxx
xxx
Undersigned submits to the just, humane and fair
discretion of the Court with verification from the WATCH
TOWER BIBLE and TRACT SOCIETY, Philippine Branch . .
. to which undersigned believes to be a high authority in
relation to her case.66[13]

DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have
accepted Luciano D. Quilapio, Jr., as my mate in marital
relationship; that I have done all within my ability to obtain
legal recognition of this relationship by the proper public
authorities and that it is because of having been unable to do
so that I therefore make this public declaration pledging
faithfulness in this marital relationship.
I recognize this relationship as a binding tie before
Jehovah God and before all persons to be held to and
honored in full accord with the principles of Gods Word. I
will continue to seek the means to obtain legal recognition of
this relationship by the civil authorities and if at any future
time a change in circumstances make this possible, I promise
to legalize this union.
Signed this 28th day of July 1991.63[10]

Deputy Court Administrator Christopher O. Lock recommended that

the case be referred to Executive Judge Bonifacio Sanz Maceda, RTC
Branch 255, Las Pias City for investigation, report and recommendation.
In the course of Judge Macedas investigation, Escritor again testified that
her congregation allows her conjugal arrangement with Quilapio and it does
not consider it immoral. She offered to supply the investigating judge some
clippings which explain the basis of her congregations belief and practice
regarding her conjugal arrangement. Escritor started living with Quilapio
twenty years ago when her husband was still alive but living with another
woman. She met this woman who confirmed to her that she was living with
her (Escritors) husband.67[14]
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985,
also testified. He had been a presiding minister since 1991 and in such
capacity is aware of the rules and regulations of their congregation. He
explained the import of and procedure for executing a Declaration of
Pledging Faithfulness, viz:
Q:Now, insofar as the pre-marital relationship is concern (sic),
can you cite some particular rules and regulations in
your congregation?

Escritors partner, Quilapio, executed a similar pledge on the same day. 64[11]
Both pledges were executed in Atimonan, Quezon and signed by three
witnesses. At the time Escritor executed her pledge, her husband was still
alive but living with another woman. Quilapio was likewise married at that
time, but had been separated in fact from his wife. During her testimony,
Escritor volunteered to present members of her congregation to confirm the
truthfulness of their Declarations of Pledging Faithfulness, but Judge
Caoibes deemed it unnecessary and considered her identification of her
signature and the signature of Quilapio sufficient authentication of the
documents.65[12]
Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator
Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation
of Acting Court Administrator Zenaida N. Elepao, directed Escritor to
comment on the charge against her. In her comment, Escritor reiterated her
religious congregations approval of her conjugal arrangement with
Quilapio, viz:
Herein respondent does not ignore alleged accusation
but she reiterates to state with candor that there is no truth as
to the veracity of same allegation. Included herewith are
documents denominated as Declaration of Pledging
Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both
respondent and her mate in marital relationship with the
witnesses concurring their acceptance to the arrangement as
approved by the WATCH TOWER BIBLE and TRACT
SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a binding
tie before JEHOVAH God and before all persons to be held
to and honored in full accord with the principles of Gods
Word.

60
61

A:

Well, we of course, talk to the persons with regards

(sic) to all the parties involved and then we request
them to execute a Public Declaration of Pledge of
faithfulness.

Q:

What is that document?

A:

Declaration of Pledge of faithfulness.

Q:

What are the relations of the document Declaration of

Pledge of faithfulness, who are suppose (sic) to execute
this document?

A:

This must be signed, the document must be signed by

the elders of the congregation; the couple, who is a
member (sic) of the congregation, baptized member
and true member of the congregation.

Q:

What standard rules and regulations do you have in

relation with this document?

A:

Actually, sir, the signing of that document, ah, with the

couple has consent to marital relationship (sic) gives
the Christian Congregation view that the couple has put
themselves on record before God and man that they are
faithful to each other. As if that relation is validated by
God.

Q:

From your explanation, Minister, do you consider it a

pledge or a document between the parties, who are
members of the congregation?

A:

It is a pledge and a document. It is a declaration, pledge

of a (sic) pledge of faithfulness.

Q:

And what does pledge mean to you?

A:

It means to me that they have contracted, let us say, I

am the one who contracted with the opposite member
of my congregation, opposite sex, and that this
document will give us the right to a marital
relationship.

Q:

So, in short, when you execute a declaration of pledge

of faithfulness, it is a preparation for you to enter a
marriage?

A:

Yes, Sir.

62
63
64

66

65

67

Q:

But it does not necessarily mean that the parties,

cohabiting or living under the same roof?

A:

Well, the Pledge of faithfulness document is (sic)

already approved as to the marital relationship.

Q:

Do you mean to say, Minister, by executing this

document the contracting parties have the right to
cohabit?

A:

Can I sir, cite, what the Bible says, the basis of that
Pledge of Faithfulness as we Christians follow. The
basis is herein stated in the Book of Matthew, Chapter
Five, Verse Twenty-two. So, in that verse of the Bible,
Jesus said that everyone divorcing his wife, except on
account of fornication, makes her a subject for adultery,
and whoever marries a divorced woman commits
adultery.68[15]

Escritor and Quilapio transferred to Salazars Congregation, the

Almanza Congregation in Las Pias, in May 2001. The declarations having
been executed in Atimonan, Quezon in 1991, Salazar had no personal
knowledge of the personal circumstances of Escritor and Quilapio when
they executed their declarations. However, when the two transferred to
Almanza, Salazar inquired about their status from the Atimonan
Congregation, gathered comments of the elders therein, and requested a
copy of their declarations. The Almanza Congregation assumed that the
personal circumstances of the couple had been considered by the Atimonan
Congregation when they executed their declarations.

and Tract Society of the Philippines, Inc., authorized Reyes to represent

him in authenticating the article. The article is distributed to the Jehovahs
Witnesses congregations which also distribute them to the public.71[18]
The parties submitted their respective memoranda to the
investigating judge. Both stated that the issue for resolution is whether or
not the relationship between respondent Escritor and Quilapio is valid and
binding in their own religious congregation, the Jehovahs Witnesses.
Complainant Estrada adds however, that the effect of the relationship to
Escritors administrative liability must likewise be determined. Estrada
argued, through counsel, that the Declaration of Pledging Faithfulness
recognizes the supremacy of the proper public authorities such that she
bound herself to seek means to . . . legalize their union. Thus, even
assuming arguendo that the declaration is valid and binding in her
congregation, it is binding only to her co-members in the congregation and
serves only the internal purpose of displaying to the rest of the congregation
that she and her mate are a respectable and morally upright couple. Their
religious belief and practice, however, cannot override the norms of
conduct required by law for government employees. To rule otherwise
would create a dangerous precedent as those who cannot legalize their livein relationship can simply join the Jehovahs Witnesses congregation and
use their religion as a defense against legal liability.72[19]
On the other hand, respondent Escritor reiterates the validity of her
conjugal arrangement with Quilapio based on the belief and practice of her
religion, the Jehovahs Witnesses. She quoted portions of the magazine
article entitled, Maintaining Marriage Before God and Men, in her
memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits
1 and 2) executed by the respondent and her mate greatly
affect the administrative liability of respondent. Jehovahs
Witnesses admit and recognize (sic) the supremacy of the
proper public authorities in the marriage arrangement.
However, it is helpful to understand the relative nature of
Caesars authority regarding marriage. From country to
country, marriage and divorce legislation presents a multitude
of different angles and aspects. Rather than becoming
entangled in a confusion of technicalities, the Christian, or the
one desiring to become a disciple of Gods Son, can be guided
by basic Scriptural principles that hold true in all cases.

Escritor and Quilapios declarations are recorded in the Watch Tower

Central office. They were executed in the usual and approved form
prescribed by the Watch Tower Bible and Tract Society which was lifted
from the article, Maintaining Marriage in Honor Before God and Men,
69[16]
in the March 15, 1977 issue of the Watch Tower magazine, entitled The
Watchtower.
The declaration requires the approval of the elders of the Jehovahs
Witnesses congregation and is binding within the congregation all over the
world except in countries where divorce is allowed. The Jehovahs
congregation requires that at the time the declarations are executed, the
couple cannot secure the civil authorities approval of the marital
relationship because of legal impediments. It is thus standard practice of the
congregation to check the couples marital status before giving imprimatur
to the conjugal arrangement. The execution of the declaration finds
scriptural basis in Matthew 5:32 that when the spouse commits adultery, the
offended spouse can remarry. The marital status of the declarants and their
respective spouses commission of adultery are investigated before the
declarations are executed. Thus, in the case of Escritor, it is presumed that
the Atimonan Congregation conducted an investigation on her marital status
before the declaration was approved and the declaration is valid
everywhere, including the Almanza Congregation. That Escritors and
Quilapios declarations were approved are shown by the signatures of three
witnesses, the elders in the Atimonan Congregation. Salazar confirmed
from the congregations branch office that these three witnesses are elders
in the Atimonan Congregation. Although in 1998 Escritor was widowed,
thereby lifting the legal impediment to marry on her part, her mate is still
not capacitated to remarry. Thus, their declarations remain valid. Once all
legal impediments for both are lifted, the couple can already register their
marriage with the civil authorities and the validity of the declarations
ceases. The elders in the congregations can then solemnize their marriage as
authorized by Philippine law. In sum, therefore, insofar as the congregation
is concerned, there is nothing immoral about the conjugal arrangement
between Escritor and Quilapio and they remain members in good standing
in the congregation.70[17]

Gods view is of first concern. So, first of all the person

must consider whether that ones present relationship, or the
relationship into which he or she contemplates entering, is one
that could meet with Gods approval, or whether in itself, it
violates the standards of Gods Word. Take, for example, the
situation where a man lives with a wife but also spends time
living with another woman as a concubine. As long as such a
state of concubinage prevails, the relationship of the second
woman can never be harmonized with Christian principles,
nor could any declaration on the part of the woman or the man
make it so. The only right course is cessation of the
relationship. Similarly with an incestuous relationship with a
member of ones immediate family, or a homosexual
relationship or other such situation condemned by Gods
Word. It is not the lack of any legal validation that makes such
relationships unacceptable; they are in themselves unscriptural
and hence, immoral. Hence, a person involved in such a
situation could not make any kind of Declaration of
Faithfulness, since it would have no merit in Gods eyes.
If the relationship is such that it can have Gods
approval, then, a second principle to consider is that one
should do all one can to establish the honorableness of ones
marital union in the eyes of all. (Heb. 13:4). If divorce is
possible, then such step should now be taken so that, having
obtained the divorce (on whatever legal grounds may be
available), the present union can receive civil validation as a
recognized marriage.

Salvador Reyes, a minister at the General de Leon, Valenzuela City

Congregation of the Jehovahs Witnesses since 1974 and member of the
headquarters of the Watch Tower Bible and Tract Society of the Philippines,
Inc., presented the original copy of the magazine article entitled,
Maintaining Marriage Before God and Men to which Escritor and
Minister Salazar referred in their testimonies. The article appeared in the
March 15, 1977 issue of the Watchtower magazine published in
Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible

Finally, if the marital relationship is not one out of

harmony with the principles of Gods Word, and if one has
done all that can reasonably be done to have it recognized by
civil authorities and has been blocked in doing so, then, a
Declaration Pledging Faithfulness can be signed. In some
cases, as has been noted, the extreme slowness of official
action may make accomplishing of legal steps a matter of

68
69

71

70

72

many, many years of effort. Or it may be that the costs

represent a crushingly heavy burden that the individual would
need years to be able to meet. In such cases, the declaration
pledging faithfulness will provide the congregation with the
basis for viewing the existing union as honorable while the
individual continues conscientiously to work out the legal
aspects to the best of his ability.
Keeping in mind the basic principles presented, the
respondent as a Minister of Jehovah God, should be able to
approach the matter in a balanced way, neither
underestimating nor overestimating the validation offered by
the political state. She always gives primary concern to Gods
view of the union. Along with this, every effort should be
made to set a fine example of faithfulness and devotion to
ones mate, thus, keeping the marriage honorable among all.
Such course will bring Gods blessing and result to the honor
and praise of the author of marriage, Jehovah God. (1 Cor.
10:31-33)73[20]

II. Issue

Whether or not respondent should be found guilty of the

administrative charge of gross and immoral conduct. To resolve this
issue, it is necessary to determine the sub-issue of whether or not
respondents right to religious freedom should carve out an exception from
the prevailing jurisprudence on illicit relations for which government
employees are held administratively liable.
III. Applicable Laws

Respondent is charged with committing gross and immoral

conduct under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer
or employee in the Civil Service shall be suspended or
dismissed except for cause as provided by law and after due
process.

Respondent also brought to the attention of the investigating judge

that complainants Memorandum came from Judge Caoibes chambers 74[21]
whom she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda
found Escritors factual allegations credible as they were supported by
testimonial and documentary evidence. He also noted that (b)y strict
Catholic standards, the live-in relationship of respondent with her mate
should fall within the definition of immoral conduct, to wit: that which is
willful, flagrant, or shameless, and which shows a moral indifference to the
opinion of the good and respectable members of the community (7 C.J.S.
959) (Delos Reyes vs. Aznar, 179 SCRA, at p. 666). He pointed out,
however, that the more relevant question is whether or not to exact from
respondent Escritor, a member of Jehovahs Witnesses, the strict moral
standards of the Catholic faith in determining her administrative
responsibility in the case at bar. 75[22] The investigating judge acknowledged
that religious freedom is a fundamental right which is entitled to the
highest priority and the amplest protection among human rights, for it
involves the relationship of man to his Creator (at p. 270, EBRALINAG
supra, citing Chief Justice Enrique M. Fernandos separate opinion in
German vs. Barangan, 135 SCRA 514, 530-531) and thereby
recommended the dismissal of the complaint against Escritor.76[23]
After considering the Report and Recommendation of Executive
Judge Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda
but departed from his recommendation to dismiss the complaint. DCA Lock
stressed that although Escritor had become capacitated to marry by the time
she joined the judiciary as her husband had died a year before, it is due to
her relationship with a married man, voluntarily carried on, that respondent
may still be subject to disciplinary action.77[24] Considering the ruling of the
Court in Dicdican v. Fernan, et al.78[25] that court personnel have been
enjoined to adhere to the exacting standards of morality and decency in
their professional and private conduct in order to preserve the good name
and integrity of the court of justice, DCA Lock found Escritors defense of
freedom of religion unavailing to warrant dismissal of the charge of
immorality. Accordingly, he recommended that respondent be found guilty
of immorality and that she be penalized with suspension of six months and
one day without pay with a warning that a repetition of a similar act will be
dealt with more severely in accordance with the Civil Service Rules.79[26]

73
74
75

(b) The following shall be grounds for disciplinary

action:
xxxxxx
xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in laymans terms, invokes
the religious beliefs and practices and moral standards of her religion, the
Jehovahs Witnesses, in asserting that her conjugal arrangement with a man
not her legal husband does not constitute disgraceful and immoral conduct
for which she should be held administratively liable. While not articulated
by respondent, she invokes religious freedom under Article III, Section 5 of
the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for
the exercise of civil or political rights.
IV. Old World Antecedents of the American Religion Clauses

To understand the life that the religion clauses have taken, it would
be well to understand not only its birth in the United States, but its
conception in the Old World. One cannot understand, much less
intelligently criticize the approaches of the courts and the political branches
to religious freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient and medieval
world and in the American experience.80[27] This fresh look at the religion
clauses is proper in deciding this case of first impression.
In primitive times, all of life may be said to have been religious.
Every significant event in the primitive mans life, from birth to death, was
marked by religious ceremonies. Tribal society survived because religious
sanctions effectively elicited adherence to social customs. A person who
broke a custom violated a taboo which would then bring upon him the
wrathful vengeance of a superhuman mysterious power. 81[28] Distinction
between the religious and non-religious would thus have been meaningless
to him. He sought protection from all kinds of evil - whether a wild beast or
tribe enemy and lightning or wind - from the same person. The head of the
clan or the Old Man of the tribe or the king protected his wards against both
human and superhuman enemies. In time, the king not only interceded for
his people with the divine powers, but he himself was looked upon as a
divine being and his laws as divine decrees.82[29]
Time came, however, when the function of acting as intermediary

76

79

77

80

78

81

between human and spiritual powers became sufficiently differentiated

from the responsibility of leading the tribe in war and policing it in peace as
to require the full-time services of a special priest class. This saw the birth
of the social and communal problem of the competing claims of the king
and priest. Nevertheless, from the beginning, the king and not the priest was
superior. The head of the tribe was the warrior, and although he also
performed priestly functions, he carried out these functions because he was
the head and representative of the community.83[30]

conception of a single and universal God that introduced a

religious exclusivism leading to compulsion and
persecution in the realm of religion. Ancient religions were
regarded as confined to each separate people believing in
them, and the question of change from one religious belief
to another did not arise. It was not until an exclusive
fellowship, that the questions of proselytism, change of belief
and liberty of religion arose.90[37] (emphasis supplied)

There being no distinction between the religious and the secular, the
same authority that promulgated laws regulating relations between man and
man promulgated laws concerning mans obligations to the supernatural.
This authority was the king who was the head of the state and the source of
all law and who only delegated performance of rituals and sacrifice to the
priests. The Code of Hammurabi, king of Babylonia, imposed penalties for
homicide, larceny, perjury, and other crimes; regulated the fees of surgeons
and the wages of masons and tailors and prescribed rules for inheritance of
property;84[31] and also catalogued the gods and assigned them their places in
the divine hierarchy so as to put Hammurabis own god to a position of
equality with existing gods.85[32] In sum, the relationship of religion to the
state (king) in pre-Hebreic times may be characterized as a union of the two
forces, with the state almost universally the dominant partner.86[33]

The Hebrew theocracy existed in its pure form from Moses to Samuel. In
this period, religion was not only superior to the state, but it was all of the
state. The Law of God as transmitted through Moses and his successors was
the whole of government.

With the rise of the Hebrew state, a new term had to be coined to
describe the relation of the Hebrew state with the Mosaic religion:
theocracy. The authority and power of the state was ascribed to God. 87[34]
The Mosaic creed was not merely regarded as the religion of the state, it
was (at least until Saul) the state itself. Among the Hebrews, patriarch,
prophet, and priest preceded king and prince. As man of God, Moses
decided when the people should travel and when to pitch camp, when they
should make war and when peace. Saul and David were made kings by the
prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the
Mosaic code combined civil laws with religious mandates, but unlike the
Hammurabi Code, religious laws were not of secondary importance. On the
contrary, religious motivation was primary and all-embracing: sacrifices
were made and Israel was prohibited from exacting usury, mistreating
aliens or using false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used
religion as an engine to advance the purposes of the state. Hammurabi
unified Mesopotamia and established Babylon as its capital by elevating its
city-god to a primary position over the previous reigning gods. 88[35] Moses,
on the other hand, capitalized on the natural yearnings of the Hebrew slaves
for freedom and independence to further Gods purposes. Liberation and
Exodus were preludes to Sinai and the receipt of the Divine Law. The
conquest of Canaan was a preparation for the building of the temple and the
full worship of God.89[36]
Upon the monotheism of Moses was the theocracy of Israel founded.
This monotheism, more than anything else, charted not only the future of
religion in western civilization, but equally, the future of the relationship
between religion and state in the west. This fact is acknowledged by many
writers, among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian

82

With Saul, however, the state rose to be the rival and ultimately, the
master, of religion. Saul and David each received their kingdom from
Samuel the prophet and disciple of Eli the priest, but soon the king
dominated prophet and priest. Saul disobeyed and even sought to slay
Samuel the prophet of God.91[38] Under Solomon, the subordination of
religion to state became complete; he used religion as an engine to further
the states purposes. He reformed the order of priesthood established by
Moses because the high priest under that order endorsed the claim of his
rival to the throne.92[39]
The subordination of religion to the state was also true in preChristian Rome which engaged in emperor-worship. When Augustus
became head of the Roman state and the priestly hierarchy, he placed
religion at a high esteem as part of a political plan to establish the real
religion of pre-Christian Rome - the worship of the head of the state. He set
his great uncle Julius Caesar among the gods, and commanded that worship
of Divine Julius should not be less than worship of Apollo, Jupiter and
other gods. When Augustus died, he also joined the ranks of the gods, as
other emperors before him.93[40]
The onset of Christianity, however, posed a difficulty to the emperor
as the Christians dogmatic exclusiveness prevented them from paying
homage to publicly accepted gods. In the first two centuries after the death
of Jesus, Christians were subjected to persecution. By the time of the
emperor Trajan, Christians were considered outlaws. Their crime was
hatred of the human race, placing them in the same category as pirates
and brigands and other enemies of mankind who were subject to
summary punishments.94[41]
In 284, Diocletian became emperor and sought to reorganize the
empire and make its administration more efficient. But the closely-knit
hierarchically controlled church presented a serious problem, being a state
within a state over which he had no control. He had two options: either to
force it into submission and break its power or enter into an alliance with it
and procure political control over it. He opted for force and revived the
persecution, destroyed the churches, confiscated sacred books, imprisoned
the clergy and by torture forced them to sacrifice. 95[42] But his efforts proved
futile.
The later emperor, Constantine, took the second option of alliance.
Constantine joined with Galerius and Licinius, his two co-rulers of the
empire, in issuing an edict of toleration to Christians on condition that
nothing is done by them contrary to discipline. 96[43] A year later, after
Galerius died, Constantine and Licius jointly issued the epochal Edict of
Milan (312 or 313), a document of monumental importance in the history

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of religious liberty. It provided that liberty of worship shall not be

denied to any, but that the mind and will of every individual shall be free
to manage divine affairs according to his own choice. (emphasis supplied)
Thus, all restrictive statutes were abrogated and it was enacted that every
person who cherishes the desire to observe the Christian religion shall
freely and unconditionally proceed to observe the same without let or
hindrance. Furthermore, it was provided that the same free and open
power to follow their own religion or worship is granted also to others, in
accordance with the tranquillity of our times, in order that every person
may have free opportunity to worship the object of his
choice.(emphasis supplied)97[44]
Before long, not only did Christianity achieve equal status, but
acquired privilege, then prestige, and eventually, exclusive power. Religion
became an engine of state policy as Constantine considered Christianity a
means of unifying his complex empire. Within seven years after the Edict
of Milan, under the emperors command, great Christian edifices were
erected, the clergy were freed from public burdens others had to bear, and
private heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state
interference in religious affairs. Constantine and his successors called and
dismissed church councils, and enforced unity of belief and practice. Until
recently the church had been the victim of persecution and repression, but
this time it welcomed the states persecution and repression of the
nonconformist and the orthodox on the belief that it was better for heretics
to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and
state was not easy. It was a constant struggle of one claiming dominance
over the other. In time, however, after the collapse and disintegration of
the Roman Empire, and while monarchical states were gradually being
consolidated among the numerous feudal holdings, the church stood as
the one permanent, stable and universal power. Not surprisingly,
therefore, it claimed not merely equality but superiority over the
secular states. This claim, symbolized by Pope Leos crowning of
Charlemagne, became the churchs accepted principle of its relationship to
the state in the Middle Ages. As viewed by the church, the union of church
and state was now a union of the state in the church. The rulers of the states
did not concede to this claim of supremacy. Thus, while Charlemagne
received his crown from the Pope, he himself crowned his own son as
successor to nullify the inference of supremacy.98[45] The whole history of
medieval Europe was a struggle for supremacy between prince and
Pope and the resulting religious wars and persecution of heretics and
nonconformists. At about the second quarter of the 13 th century, the
Inquisition was established, the purpose of which was the discovery and
extermination of heresy. Accused heretics were tortured with the approval
of the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the
Reformation aimed at reforming the Catholic Church and resulting in the
establishment of Protestant churches. While Protestants are accustomed to
ascribe to the Reformation the rise of religious liberty and its acceptance as
the principle governing the relations between a democratic state and its
citizens, history shows that it is more accurate to say that the same causes
that gave rise to the Protestant revolution also resulted in the widespread
acceptance of the principle of religious liberty, and ultimately of the
principle of separation of church and state. 99[46] Pleas for tolerance and
freedom of conscience can without doubt be found in the writings of
leaders of the Reformation. But just as Protestants living in the countries of
papists pleaded for toleration of religion, so did the papists that lived where
Protestants were dominant.100[47] Papist and Protestant governments alike
accepted the idea of cooperation between church and state and regarded as
essential to national unity the uniformity of at least the outward
manifestations of religion.101[48] Certainly, Luther, leader of the Reformation,
stated that neither pope, nor bishop, nor any man whatever has the right of

making one syllable binding on a Christian man, unless it be done with his
own consent.102[49] But when the tables had turned and he was no longer the
hunted heretic, he likewise stated when he made an alliance with the secular
powers that (h)eretics are not to be disputed with, but to be condemned
unheard, and whilst they perish by fire, the faithful ought to pursue the evil
to its source, and bathe their hands in the blood of the Catholic bishops, and
of the Pope, who is a devil in disguise.103[50] To Luther, unity among the
peoples in the interests of the state was an important consideration. Other
personalities in the Reformation such as Melanchton, Zwingli and Calvin
strongly espoused theocracy or the use of the state as an engine to further
religion. In establishing theocracy in Geneva, Calvin made absence from
the sermon a crime, he included criticism of the clergy in the crime of
blasphemy punishable by death, and to eliminate heresy, he cooperated in
the Inquisition.104[51]
There were, however, those who truly advocated religious liberty.
Erasmus, who belonged to the Renaissance than the Reformation, wrote
that (t)he terrible papal edict, the more terrible imperial edict, the
imprisonments, the confiscations, the recantations, the fagots and burnings,
all these things I can see accomplish nothing except to make the evil more
widespread.105[52] The minority or dissident sects also ardently
advocated religious liberty. The Anabaptists, persecuted and despised,
along with the Socinians (Unitarians) and the Friends of the Quakers
founded by George Fox in the 17th century, endorsed the supremacy and
freedom of the individual conscience. They regarded religion as outside the
realm of political governments.106[53] The English Baptists proclaimed that
the magistrate is not to meddle with religion or matters of conscience, nor
compel men to this or that form of religion.107[54]
Thus, out of the Reformation, three rationalizations of church-state
relations may be distinguished: the Erastian (after the German doctor
Erastus), the theocratic, and the separatist. The first assumed state
superiority in ecclesiastical affairs and the use of religion as an engine of
state policy as demonstrated by Luthers belief that civic cohesion could not
exist without religious unity so that coercion to achieve religious unity was
justified. The second was founded on ecclesiastical supremacy and the use
of state machinery to further religious interests as promoted by Calvin. The
third, which was yet to achieve ultimate and complete expression in the
New World, was discernibly in its incipient form in the arguments of
some dissident minorities that the magistrate should not intermeddle in
religious affairs.108[55] After the Reformation, Erastianism pervaded all
Europe except for Calvins theocratic Geneva. In England, perhaps more
than in any other country, Erastianism was at its height. To illustrate, a
statute was enacted by Parliament in 1678, which, to encourage woolen
trade, imposed on all clergymen the duty of seeing to it that no person was
buried in a shroud made of any substance other than wool. 109[56] Under
Elizabeth, supremacy of the crown over the church was complete:
ecclesiastical offices were regulated by her proclamations, recusants were
fined and imprisoned, Jesuits and proselytizing priests were put to death for
high treason, the thirty-nine Articles of the Church of England were
adopted and English Protestantism attained its present doctrinal status. 110[57]
Elizabeth was to be recognized as the only Supreme Governor of this
realm . . . as well in all spiritual or ecclesiastical things or causes as
temporal. She and her successors were vested, in their dominions, with

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all manner of jurisdictions, privileges, and preeminences, in any wise

touching or concerning any spiritual or ecclesiastical jurisdiction. 111[58]
Later, however, Cromwell established the constitution in 1647 which
granted full liberty to all Protestant sects, but denied toleration to
Catholics.112[59] In 1689, William III issued the Act of Toleration which
established a de facto toleration for all except Catholics. The Catholics
achieved religious liberty in the 19th century when the Roman Catholic
Relief Act of 1829 was adopted. The Jews followed suit in 1858 when
they were finally permitted to sit in Parliament.113[60]
When the representatives of the American states met in
Philadelphia in 1787 to draft the constitutional foundation of the new
republic, the theocratic state which had flourished intermittently in Israel,
Judea, the Holy Roman Empire and Geneva was completely gone. The
prevailing church-state relationship in Europe was Erastianism embodied in
the system of jurisdictionalism whereby one faith was favored as the
official state-supported religion, but other faiths were permitted to exist
with freedom in various degrees. No nation had yet adopted as the basis
of its church-state relations the principle of the mutual independence of
religion and government and the concomitant principle that neither
might be used as an engine to further the policies of the other, although
the principle was in its seminal form in the arguments of some
dissident minorities and intellectual leaders of the Renaissance. The
religious wars of 16th and 17th century Europe were a thing of the past
by the time America declared its independence from the Old World,
but their memory was still vivid in the minds of the Constitutional
Fathers as expressed by the United States Supreme Court, viz:
The
centuries
immediately
before
and
contemporaneous with the colonization of America had been
filled with turmoil, civil strife, and persecution generated in
large part by established sects determined to maintain their
absolute political and religious supremacy. With the power of
government supporting them, at various times and places,
Catholics had persecuted Protestants, Protestants had
persecuted Catholics, Protestant sects had persecuted other
protestant sects, Catholics of one shade of belief had
persecuted Catholics of another shade of belief, and all of
these had from time to time persecuted Jews. In efforts to
force loyalty to whatever religious group happened to be on
top and in league with the government of a particular time and
place, men and women had been fined, cast in jail, cruelly
tortured, and killed. Among the offenses for which these
punishments had been inflicted were such things as speaking
disrespectfully of the views of ministers of governmentestablished churches, non-attendance at those churches,
expressions of non-belief in their doctrines, and failure to pay
taxes and tithes to support them.114[61]
In 1784, James Madison captured in this statement the entire history
of church-state relations in Europe up to the time the United States
Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain
attempts of the secular arm to extinguish religious discord, by
proscribing all differences in religious opinions.115[62]
In sum, this history shows two salient features: First, with minor
exceptions, the history of church-state relationships was characterized by
persecution, oppression, hatred, bloodshed, and war, all in the name of the
God of Love and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion by

secular powers to promote secular purposes and policies, and the

willing acceptance of that role by the vanguards of religion in exchange
for the favors and mundane benefits conferred by ambitious princes
and emperors in exchange for religions invaluable service. This was
the context in which the unique experiment of the principle of religious
freedom and separation of church and state saw its birth in American
constitutional democracy and in human history.116[63]
V. Factors Contributing to the Adoption
of the American Religion Clauses

Settlers fleeing from religious persecution in Europe, primarily in

Anglican-dominated England, established many of the American colonies.
British thought pervaded these colonies as the immigrants brought with
them their religious and political ideas from England and English books and
pamphlets largely provided their cultural fare. 117[64] But although these
settlers escaped from Europe to be freed from bondage of laws which
compelled them to support and attend government favored churches, some
of these settlers themselves transplanted into American soil the oppressive
practices they escaped from. The charters granted by the English Crown to
the individuals and companies designated to make the laws which would
control the destinies of the colonials authorized them to erect religious
establishments, which all, whether believers or not, were required to
support or attend.118[65] At one time, six of the colonies established a state
religion. Other colonies, however, such as Rhode Island and Delaware
tolerated a high degree of religious diversity. Still others, which originally
tolerated only a single religion, eventually extended support to several
different faiths.119[66]
This was the state of the American colonies when the unique
American experiment of separation of church and state came about.
The birth of the experiment cannot be attributed to a single cause or event.
Rather, a number of interdependent practical and ideological factors
contributed in bringing it forth. Among these were the English Act of
Toleration of 1689, the multiplicity of sects, the lack of church affiliation on
the part of most Americans, the rise of commercial intercourse, the
exigencies of the Revolutionary War, the Williams-Penn tradition and the
success of their experiments, the writings of Locke, the social contract
theory, the Great Awakening, and the influence of European rationalism and
deism.120[67] Each of these factors shall be briefly discussed.
First, the practical factors. Englands policy of opening the gates of
the American colonies to different faiths resulted in the multiplicity of sects
in the colonies. With an Erastian justification, English lords chose to forego
protecting what was considered to be the true and eternal church of a
particular time in order to encourage trade and commerce. The colonies
were large financial investments which would be profitable only if people
would settle there. It would be difficult to engage in trade with persons one
seeks to destroy for religious belief, thus tolerance was a necessity. This
tended to distract the colonies from their preoccupations over their religion
and its exclusiveness, encouraging them to think less of the Church and
more of the State and of commerce.121[68] The diversity brought about by
the colonies open gates encouraged religious freedom and nonestablishment in several ways. First, as there were too many dissenting
sects to abolish, there was no alternative but to learn to live together.
Secondly, because of the daily exposure to different religions, the
passionate conviction in the exclusive rightness of ones religion, which
impels persecution for the sake of ones religion, waned. Finally, because of
the great diversity of the sects, religious uniformity was not possible, and

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without such uniformity, establishment could not survive.122[69]

But while there was a multiplicity of denomination, paradoxically,
there was a scarcity of adherents. Only about four percent of the entire
population of the country had a church affiliation at the time the republic
was founded.123[70] This might be attributed to the drifting to the American
colonies of the skepticism that characterized European Enlightenment. 124[71]
Economic considerations might have also been a factor. The individualism
of the American colonist, manifested in the multiplicity of sects, also
resulted in much unaffiliated religion which treated religion as a personal
non-institutional matter. The prevalence of lack of church affiliation
contributed to religious liberty and disestablishment as persons who were
not connected with any church were not likely to persecute others for
similar independence nor accede to compulsory taxation to support a
church to which they did not belong.125[72]
However, for those who were affiliated to churches, the colonial
policy regarding their worship generally followed the tenor of the English
Act of Toleration of 1689. In England, this Act conferred on Protestant
dissenters the right to hold public services subject to registration of their
ministers and places of worship.126[73] Although the toleration accorded to
Protestant dissenters who qualified under its terms was only a modest
advance in religious freedom, it nevertheless was of some influence to the
American experiment.127[74] Even then, for practical considerations,
concessions had to be made to other dissenting churches to ensure their
cooperation in the War of Independence which thus had a unifying effect on
the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th
century, an evangelical religious revival originating in New England,
caused a break with formal church religion and a resistance to coercion by
established churches. This movement emphasized an emotional, personal
religion that appealed directly to the individual, putting emphasis on the
rights and duties of the individual conscience and its answerability
exclusively to God. Thus, although they had no quarrel with orthodox
Christian theology as in fact they were fundamentalists, this group became
staunch advocates of separation of church and state.128[75]
Then there was the Williams-Penn tradition. Roger Williams was
the founder of the colony of Rhode Island where he established a
community of Baptists, Quakers and other nonconformists. In this colony,
religious freedom was not based on practical considerations but on the
concept of mutual independence of religion and government. In 1663,
Rhode Island obtained a charter from the British crown which declared that
settlers have it much on their heart to hold forth a livelie experiment that a
most flourishing civil state may best be maintained . . . with full libertie in
religious concernments.129[76] In Williams pamphlet, The Bloudy Tenent of
Persecution for cause of Conscience, discussed in a Conference between
Truth and Peace,130[77] he articulated the philosophical basis for his
argument of religious liberty. To him, religious freedom and separation of
church and state did not constitute two but only one principle. Religious

persecution is wrong because it confounds the Civil and Religious and

because States . . . are proved essentially Civil. The power of true
discerning the true fear of God is not one of the powers that the people
have transferred to Civil Authority.131[78] Williams Bloudy Tenet is
considered an epochal milestone in the history of religious freedom and the
separation of church and state.132[79]
William Penn, proprietor of the land that became Pennsylvania, was
also an ardent advocate of toleration, having been imprisoned for his
religious convictions as a member of the despised Quakers. He opposed
coercion in matters of conscience because imposition, restraint and
persecution for conscience sake, highly invade the Divine prerogative.
Aside from his idealism, proprietary interests made toleration in
Pennsylvania necessary. He attracted large numbers of settlers by promising
religious toleration, thus bringing in immigrants both from the Continent
and Britain. At the end of the colonial period, Pennsylvania had the greatest
variety of religious groups. Penn was responsible in large part for the
Concessions and agreements of the Proprietors, Freeholders, and
inhabitants of West Jersey, in America, a monumental document in the
history of civil liberty which provided among others, for liberty of
conscience.133[80] The Baptist followers of Williams and the Quakers who
came after Penn continued the tradition started by the leaders of their
denominations. Aside from the Baptists and the Quakers, the Presbyterians
likewise greatly contributed to the evolution of separation and freedom. 134[81]
The Constitutional fathers who convened in Philadelphia in 1787, and
Congress and the states that adopted the First Amendment in 1791 were
very familiar with and strongly influenced by the successful examples of
Rhode Island and Pennsylvania.135[82]
Undeniably, John Locke and the social contract theory also
contributed to the American experiment. The social contract theory
popularized by Locke was so widely accepted as to be deemed self-evident
truth in Americas Declaration of Independence. With the doctrine of
natural rights and equality set forth in the Declaration of Independence,
there was no room for religious discrimination. It was difficult to justify
inequality in religious treatment by a new nation that severed its political
bonds with the English crown which violated the self-evident truth that all
men are created equal.136[83]
The social contract theory was applied by many religious groups in
arguing against establishment, putting emphasis on religion as a natural
right that is entirely personal and not within the scope of the powers of a
political body. That Locke and the social contract theory were influential in
the development of religious freedom and separation is evident from the
memorial presented by the Baptists to the Continental Congress in 1774,
viz:
Men unite in society, according to the great Mr. Locke,
with an intention in every one the better to preserve himself,
his liberty and property. The power of the society, or
Legislature constituted by them, can never be supposed to
extend any further than the common good, but is obliged to
secure every ones property. To give laws, to receive
obedience, to compel with the sword, belong to none but the
civil magistrate; and on this ground we affirm that the
magistrates power extends not to establishing any articles of
faith or forms of worship, by force of laws; for laws are of no
force without penalties. The care of souls cannot belong to
the civil magistrate, because his power consists only in
outward force; but pure and saving religion consists in the
inward persuasion of the mind, without which nothing can

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be acceptable to God.137[84] (emphasis supplied)

The idea that religion was outside the jurisdiction of civil government was
acceptable to both the religionist and rationalist. To the religionist, God or
Christ did not desire that government have that jurisdiction (render unto
Caesar that which is Caesars; my kingdom is not of this world) and to
the rationalist, the power to act in the realm of religion was not one of the
powers conferred on government as part of the social contract.138[85]
Not only the social contract theory drifted to the colonies from
Europe. Many of the leaders of the Revolutionary and postrevolutionary period were also influenced by European deism and
rationalism,139[86] in general, and some were apathetic if not antagonistic
to formal religious worship and institutionalized religion. Jefferson,
Paine, John Adams, Washington, Franklin, Madison, among others were
reckoned to be among the Unitarians or Deists. Unitarianism and Deism
contributed to the emphasis on secular interests and the relegation of
historic theology to the background. 140[87] For these men of the
enlightenment, religion should be allowed to rise and fall on its own, and
the state must be protected from the clutches of the church whose
entanglements has caused intolerance and corruption as witnessed
throughout history.141[88] Not only the leaders but also the masses embraced
rationalism at the end of the eighteenth century, accounting for the
popularity of Paines Age of Reason.142[89]
Finally, the events leading to religious freedom and separation in
Virginia contributed significantly to the American experiment of the First
Amendment. Virginia was the first state in the history of the world to
proclaim the decree of absolute divorce between church and state. 143[90]
Many factors contributed to this, among which were that half to two-thirds
of the population were organized dissenting sects, the Great Awakening had
won many converts, the established Anglican Church of Virginia found
themselves on the losing side of the Revolution and had alienated many
influential laymen with its identification with the Crowns tyranny, and
above all, present in Virginia was a group of political leaders who were
devoted to liberty generally,144[91] who had accepted the social contract as
self-evident, and who had been greatly influenced by Deism and
Unitarianism. Among these leaders were Washington, Patrick Henry,
George Mason, James Madison and above the rest, Thomas Jefferson.

The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first
legislative assembly with petitions for abolition of establishment. While the
majority of the population were dissenters, a majority of the legislature
were churchmen. The legislature compromised and enacted a bill in 1776
abolishing the more oppressive features of establishment and granting
exemptions to the dissenters, but not guaranteeing separation. It repealed
the laws punishing heresy and absence from worship and requiring the
dissenters to contribute to the support of the establishment. 146[93] But the
dissenters were not satisfied; they not only wanted abolition of support for
the establishment, they opposed the compulsory support of their own
religion as others. As members of the established church would not allow
that only they would pay taxes while the rest did not, the legislature enacted
in 1779 a bill making permanent the establishments loss of its exclusive
status and its power to tax its members; but those who voted for it did so in
the hope that a general assessment bill would be passed. Without the latter,
the establishment would not survive. Thus, a bill was introduced in 1779
requiring every person to enroll his name with the county clerk and indicate
which society for the purpose of Religious Worship he wished to support.
On the basis of this list, collections were to be made by the sheriff and
turned over to the clergymen and teachers designated by the religious
congregation. The assessment of any person who failed to enroll in any
society was to be divided proportionately among the societies. 147[94] The bill
evoked strong opposition.
In 1784, another bill, entitled Bill Establishing a Provision for
Teachers of the Christian Religion was introduced requiring all persons to
pay a moderate tax or contribution annually for the support of the Christian
religion, or of some Christian church, denomination or communion of
Christians, or for some form of Christian worship. 148[95] This likewise
aroused the same opposition to the 1779 bill. The most telling blow against
the 1784 bill was the monumental Memorial and Remonstrance against
Religious Assessments written by Madison and widely distributed before
the reconvening of legislature in the fall of 1785. 149[96] It stressed natural
rights, the governments lack of jurisdiction over the domain of
religion, and the social contract as the ideological basis of separation
while also citing practical considerations such as loss of population through
migration. He wrote, viz:
Because we hold it for a fundamental and
undeniable truth, that religion, or the duty which we owe
to our creator, and the manner of discharging it, can be
directed only by reason and conviction, not by force or
violence. The religion, then, of every man, must be left to
the conviction and conscience of every man; and it is the
right of every man to exercise it as these may dictate. This
right is, in its nature, an unalienable right. It is unalienable,
because the opinions of men, depending only on the evidence
contemplated in their own minds, cannot follow the dictates of
other men; it is unalienable, also, because what is here a right
towards men, is a duty towards the creator. It is the duty of
every man to render the creator such homage, and such
only as he believes to be acceptable to him; this duty is
precedent, both in order of time and degree of obligation,
to the claims of civil society. Before any man can be
considered as a member of civil society, he must be
considered as a subject of the governor of the universe;
and if a member of civil society, who enters into any
subordinate association, must always do it with a reservation
of his duty to the general authority, much more must every
man who becomes a member of any particular civil society do
it with the saving his allegiance to the universal sovereign. 150
[97]
(emphases supplied)

The first major step towards separation in Virginia was the adoption
of the following provision in the Bill of Rights of the states first
constitution:
That religion, or the duty which we owe to our Creator,
and the manner of discharging it, can be directed only by
reason and conviction, not by force or violence; and
therefore, all men are equally entitled to the free exercise
of religion according to the dictates of conscience; and that
it is the mutual duty of all to practice Christian forbearance,
love, and charity towards each other.145[92] (emphasis supplied)

137
138
139
140

Madison articulated in the Memorial the widely held beliefs in 1785 as

indicated by the great number of signatures appended to the Memorial. The

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147

143

148

144

149

145

150

assessment bill was speedily defeated.

Taking advantage of the situation, Madison called up a much earlier
1779 bill of Jefferson which had not been voted on, the Bill for
Establishing Religious Freedom, and it was finally passed in January
1786. It provided, viz:
Well aware that Almighty God hath created the
mind free; that all attempts to influence it by temporal
punishments or burdens, or by civil incapacitations, tend not
only to beget habits of hypocrisy and meanness, and are a
departure from the plan of the Holy Author of our religion,
who being Lord both of body and mind, yet chose not to
propagate it by coercions on either, as was in his Almighty
power to do;

This could be deduced from the prohibition of any religious test for federal
office in Article VI of the Constitution and the assumed lack of power of
Congress to act on any subject not expressly mentioned in the
Constitution.158[105] However, omission of an express guaranty of religious
freedom and other natural rights nearly prevented the ratification of the
Constitution.159[106] In the ratifying conventions of almost every state, some
objection was expressed to the absence of a restriction on the Federal
Government as regards legislation on religion. 160[107] Thus, in 1791, this
restriction was made explicit with the adoption of the religion clauses in the
First Amendment as they are worded to this day, with the first part usually
referred to as the Establishment Clause and the second part, the Free
Exercise Clause, viz:
Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof.

xxxxxx

VI.Religion Clauses in the United States:

Concept, Jurisprudence, Standards

xxx
Be it therefore enacted by the General Assembly. That
no man shall be compelled to frequent or support any
religious worship, place or ministry whatsoever, nor shall be
enforced, restrained, molested or burdened in his body or
goods, nor shall otherwise suffer on account of his religious
opinions or beliefs, but that all men shall be free to profess,
and by argument to maintain, their opinions in matters of
religion, and that the same shall in no wise diminish, enlarge
or affect their civil capacities.151[98] (emphases supplied)
This statute forbade any kind of taxation in support of religion and
effectually ended any thought of a general or particular establishment in
Virginia.152[99] But the passage of this law was obtained not only because of
the influence of the great leaders in Virginia but also because of substantial
popular support coming mainly from the two great dissenting sects, namely
the Presbyterians and the Baptists. The former were never established in
Virginia and an underprivileged minority of the population. This made them
anxious to pull down the existing state church as they realized that it was
impossible for them to be elevated to that privileged position. Apart from
these expediential considerations, however, many of the Presbyterians were
sincere advocates of separation153[100] grounded on rational, secular
arguments and to the language of natural religion. 154[101] Influenced by
Roger Williams, the Baptists, on the other hand, assumed that religion was
essentially a matter of concern of the individual and his God, i.e.,
subjective, spiritual and supernatural, having no relation with the social
order.155[102] To them, the Holy Ghost was sufficient to maintain and direct
the Church without governmental assistance and state-supported religion
was contrary ti the spirit of the Gospel.156[103] Thus, separation was
necessary.157[104] Jeffersons religious freedom statute was a milestone in the
history of religious freedom. The United States Supreme Court has not just
once acknowledged that the provisions of the First Amendment of the
U.S. Constitution had the same objectives and intended to afford the
same protection against government interference with religious liberty
as the Virginia Statute of Religious Liberty.

With the widespread agreement regarding the value of the First

Amendment religion clauses comes an equally broad disagreement as to
what these clauses specifically require, permit and forbid. No agreement
has been reached by those who have studied the religion clauses as regards
its exact meaning and the paucity of records in Congress renders it difficult
to ascertain its meaning.161[108] Consequently, the jurisprudence in this
area is volatile and fraught with inconsistencies whether within a Court
decision or across decisions.
One source of difficulty is the difference in the context in which the
First Amendment was adopted and in which it is applied today. In the
1780s, religion played a primary role in social life - i.e., family
responsibilities, education, health care, poor relief, and other aspects of
social life with significant moral dimension - while government played a
supportive and indirect role by maintaining conditions in which these
activities may be carried out by religious or religiously-motivated
associations. Today, government plays this primary role and religion plays
the supportive role.162[109] Government runs even family planning, sex
education, adoption and foster care programs. 163[110] Stated otherwise and
with some exaggeration, (w)hereas two centuries ago, in matters of social
life which have a significant moral dimension, government was the
handmaid of religion, today religion, in its social responsibilities, as
contrasted with personal faith and collective worship, is the handmaid of
government.164[111] With government regulation of individual conduct
having become more pervasive, inevitably some of those regulations would
reach conduct that for some individuals are religious. As a result,
increasingly, there may be inadvertent collisions between purely secular
government actions and religion clause values.165[112]
Parallel to this expansion of government has been the expansion of
religious organizations in population, physical institutions, types of
activities undertaken, and sheer variety of denominations, sects and cults.
Churches run day-care centers, retirement homes, hospitals, schools at all

Even in the absence of the religion clauses, the principle that

government had no power to legislate in the area of religion by restricting
its free exercise or establishing it was implicit in the Constitution of 1787.

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levels, research centers, settlement houses, halfway houses for prisoners,

sports facilities, theme parks, publishing houses and mass media programs.
In these activities, religious organizations complement and compete with
commercial enterprises, thus blurring the line between many types of
activities undertaken by religious groups and secular activities. Churches
have also concerned themselves with social and political issues as a
necessary outgrowth of religious faith as witnessed in pastoral letters on
war and peace, economic justice, and human life, or in ringing affirmations
for racial equality on religious foundations. Inevitably, these developments
have brought about substantial entanglement of religion and government.
Likewise, the growth in population density, mobility and diversity has
significantly changed the environment in which religious organizations and
activities exist and the laws affecting them are made. It is no longer easy for
individuals to live solely among their own kind or to shelter their children
from exposure to competing values. The result is disagreement over what
laws should require, permit or prohibit;166[113] and agreement that if the
rights of believers as well as non-believers are all to be respected and given
their just due, a rigid, wooden interpretation of the religion clauses that is
blind to societal and political realities must be avoided.167[114]
Religion cases arise from different circumstances. The more obvious
ones arise from a government action which purposely aids or inhibits
religion. These cases are easier to resolve as, in general, these actions are
plainly unconstitutional. Still, this kind of cases poses difficulty in
ascertaining proof of intent to aid or inhibit religion. 168[115] The more
difficult religion clause cases involve government action with a secular
purpose and general applicability which incidentally or inadvertently aids
or burdens religious exercise. In Free Exercise Clause cases, these
government actions are referred to as those with burdensome effect on
religious exercise even if the government action is not religiously
motivated.169[116] Ideally, the legislature would recognize the religions and
their practices and would consider them, when practical, in enacting laws of
general application. But when the legislature fails to do so, religions that
are threatened and burdened turn to the courts for protection. 170[117] Most of
these free exercise claims brought to the Court are for exemption, not
invalidation of the facially neutral law that has a burdensome effect.171[118]

establishment of religion, or forbidding the free exercise

thereof, was intended to allow everyone under the jurisdiction
of the United States to entertain such notions respecting his
relations to his Maker and the duties they impose as may be
approved by his judgment and conscience, and to exhibit his
sentiments in such form of worship as he may think proper,
not injurious to the equal rights of others, and to prohibit
legislation for the support of any religious tenets, or the modes
of worship of any sect.174[121]
The definition was clearly theistic which was reflective of the popular
attitudes in 1890.
In 1944, the Court stated in United States v. Ballard175[122] that the
free exercise of religion embraces the right to maintain theories of life
and of death and of the hereafter which are rank heresy to followers of
the orthodox faiths.176[123] By the 1960s, American pluralism in religion had
flourished to include non-theistic creeds from Asia such as Buddhism and
Taoism.177[124] In 1961, the Court, in Torcaso v. Watkins,178[125] expanded the
term religion to non-theistic beliefs such as Buddhism, Taoism, Ethical
Culture, and Secular Humanism. Four years later, the Court faced a
definitional problem in United States v. Seeger179[126] which involved four
men who claimed conscientious objector status in refusing to serve in the
Vietnam War. One of the four, Seeger, was not a member of any organized
religion opposed to war, but when specifically asked about his belief in a
Supreme Being, Seeger stated that you could call (it) a belief in a Supreme
Being or God. These just do not happen to be the words that I use. Forest
Peter, another one of the four claimed that after considerable meditation and
reflection on values derived from the Western religious and philosophical
tradition, he determined that it would be a violation of his moral code to
take human life and that he considered this belief superior to any obligation
to the state. The Court avoided a constitutional question by broadly
interpreting not the Free Exercise Clause, but the statutory definition of
religion in the Universal Military Training and Service Act of 1940 which
exempt from combat anyone who, by reason of religious training and
belief, is conscientiously opposed to participation in war in any form.
Speaking for the Court, Justice Clark ruled, viz:

With the change in political and social context and the increasing
inadvertent collisions between law and religious exercise, the definition of
religion for purposes of interpreting the religion clauses has also been
modified to suit current realities. Defining religion is a difficult task for
even theologians, philosophers and moralists cannot agree on a
comprehensive definition. Nevertheless, courts must define religion for
constitutional and other legal purposes. 172[119] It was in the 1890 case of
Davis v. Beason173[120] that the United States Supreme Court first had
occasion to define religion, viz:
The term religion has reference to ones views of
his relations to his Creator, and to the obligations they
impose of reverence for his being and character, and of
obedience to his will. It is often confounded with the cultus
or form of worship of a particular sect, but is distinguishable
from the latter. The First Amendment to the Constitution, in
declaring that Congress shall make no law respecting the

Congress, in using the expression Supreme Being

rather than the designation God, was merely clarifying the
meaning of religious tradition and belief so as to embrace all
religions and to exclude essentially political, sociological, or
philosophical views (and) the test of belief in relation to a
Supreme Being is whether a given belief that is sincere
and meaningful occupies a place in the life of its possessor
parallel to the orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were
conscientious objectors possessed of such religious belief and training.

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Federal and state courts have expanded the definition of religion in

Seeger to include even non-theistic beliefs such as Taoism or Zen
Buddhism. It has been proposed that basically, a creed must meet four
criteria to qualify as religion under the First Amendment. First, there must
be belief in God or some parallel belief that occupies a central place in the
believers life. Second, the religion must involve a moral code transcending
individual belief, i.e., it cannot be purely subjective. Third, a demonstrable
sincerity in belief is necessary, but the court must not inquire into the truth
or reasonableness of the belief. 180[127] Fourth, there must be some
associational ties,181[128] although there is also a view that religious beliefs
held by a single person rather than being part of the teachings of any kind

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of group or sect are entitled to the protection of the Free Exercise Clause. 182
[129]

Defining religion is only the beginning of the difficult task of

deciding religion clause cases. Having hurdled the issue of definition, the
court then has to draw lines to determine what is or is not permissible
under the religion clauses. In this task, the purpose of the clauses is the
yardstick. Their purpose is singular; they are two sides of the same coin. 183
[130]
In devoting two clauses to religion, the Founders were stating not two
opposing thoughts that would cancel each other out, but two
complementary thoughts that apply in different ways in different
circumstances.184[131] The purpose of the religion clauses - both in the
restriction it imposes on the power of the government to interfere with the
free exercise of religion and the limitation on the power of government to
establish, aid, and support religion - is the protection and promotion of
religious liberty.185[132] The end, the goal, and the rationale of the religion
clauses is this liberty.186[133] Both clauses were adopted to prevent
government imposition of religious orthodoxy; the great evil against which
they are directed is government-induced homogeneity.187[134] The Free
Exercise Clause directly articulates the common objective of the two
clauses and the Establishment Clause specifically addresses a form of
interference with religious liberty with which the Framers were most
familiar and for which government historically had demonstrated a
propensity.188[135] In other words, free exercise is the end, proscribing
establishment is a necessary means to this end to protect the rights of those
who might dissent from whatever religion is established. 189[136] It has even
been suggested that the sense of the First Amendment is captured if it were
to read as Congress shall make no law respecting an establishment of
religion or otherwise prohibiting the free exercise thereof because the
fundamental and single purpose of the two religious clauses is to avoid
any infringement on the free exercise of religions 190[137] Thus, the
Establishment Clause mandates separation of church and state to protect
each from the other, in service of the larger goal of preserving religious
liberty. The effect of the separation is to limit the opportunities for any
religious group to capture the state apparatus to the disadvantage of those of
other faiths, or of no faith at all191[138] because history has shown that
religious fervor conjoined with state power is likely to tolerate far less
religious disagreement and disobedience from those who hold different

180

beliefs than an enlightened secular state. 192[139] In the words of the U.S.
Supreme Court, the two clauses are interrelated, viz: (t)he structure of our
government has, for the preservation of civil liberty, rescued the temporal
institutions from religious interference. On the other hand, it has secured
religious liberty from the invasion of the civil authority.193[140]
In upholding religious liberty as the end goal in religious clause
cases, the line the court draws to ensure that government does not
establish and instead remains neutral toward religion is not absolutely
straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area
cannot be an absolutely straight line; rigidity could well
defeat the basic purpose of these provisions, which is to insure
that no religion be sponsored or favored, none commanded
and none inhibited.194[141] (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably different,195
[142]
even opposing, strains of jurisprudence on the religion clauses:
separation (in the form of strict separation or the tamer version of
strict neutrality or separation) and benevolent neutrality or
accommodation. A view of the landscape of U.S. religion clause cases
would be useful in understanding these two strains, the scope of protection
of each clause, and the tests used in religious clause cases. Most of these
cases are cited as authorities in Philippine religion clause cases.
A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case
of Reynolds v. United States.196[143] This landmark case involved Reynolds,
a Mormon who proved that it was his religious duty to have several wives
and that the failure to practice polygamy by male members of his religion
when circumstances would permit would be punished with damnation in
the life to come. Reynolds act of contracting a second marriage violated
Section 5352, Revised Statutes prohibiting and penalizing bigamy, for
which he was convicted. The Court affirmed Reynolds conviction, using
what in jurisprudence would be called the belief-action test which allows
absolute protection to belief but not to action. It cited Jeffersons Bill
Establishing Religious Freedom which, according to the Court, declares
the true distinction between what properly belongs to the Church and what
to the State.197[144] The bill, making a distinction between belief and action,
states in relevant part, viz:
That to suffer the civil magistrate to intrude his
powers into the field of opinion, and to restrain the
profession or propagation of principles on supposition of their
ill tendency, is a dangerous fallacy which at once destroys
all religious liberty;

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that it is time enough for the rightful purposes of

civil government for its officers to interfere when
principles break out into overt acts against peace and good
order.198[145] (emphasis supplied)

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The Court then held, viz:

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Congress was deprived of all legislative power over

mere opinion, but was left free to reach actions which were

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in violation of social duties or subversive of good order. . .

Laws are made for the government of actions, and
while they cannot interfere with mere religious belief and
opinions, they may with practices. Suppose one believed
that human sacrifice were a necessary part of religious
worship, would it be seriously contended that the civil
government under which he lived could not interfere to
prevent a sacrifice? Or if a wife religiously believed it was her
duty to burn herself upon the funeral pile of her dead husband,
would it be beyond the power of the civil government to
prevent her carrying her belief into practice?
So here, as a law of the organization of society under
the exclusive dominion of the United States, it is provided that
plural marriages shall not be allowed. Can a man excuse his
practices to the contrary because of his religious belief? To
permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and in effect to
permit every citizen to become a law unto himself.
Government could exist only in name under such
circumstances.199[146]
The construct was thus simple: the state was absolutely prohibited by the
Free Exercise Clause from regulating individual religious beliefs, but
placed no restriction on the ability of the state to regulate religiously
motivated conduct. It was logical for belief to be accorded absolute
protection because any statute designed to prohibit a particular religious
belief unaccompanied by any conduct would most certainly be motivated
only by the legislatures preference of a competing religious belief. Thus,
all cases of regulation of belief would amount to regulation of religion for
religious reasons violative of the Free Exercise Clause. On the other hand,
most state regulations of conduct are for public welfare purposes and have
nothing to do with the legislatures religious preferences. Any burden on
religion that results from state regulation of conduct arises only when
particular individuals are engaging in the generally regulated conduct
because of their particular religious beliefs. These burdens are thus usually
inadvertent and did not figure in the belief-action test. As long as the Court
found that regulation address action rather than belief, the Free Exercise
Clause did not pose any problem. 200[147] The Free Exercise Clause thus gave
no protection against the proscription of actions even if considered central
to a religion unless the legislature formally outlawed the belief itself.201[148]
This belief-action distinction was held by the Court for some years
as shown by cases where the Court upheld other laws which burdened the
practice of the Mormon religion by imposing various penalties on
polygamy such as the Davis case and Church of Latter Day Saints v.
United States.202[149] However, more than a century since Reynolds was
decided, the Court has expanded the scope of protection from belief to
speech and conduct. But while the belief-action test has been abandoned,
the rulings in the earlier Free Exercise cases have gone unchallenged. The
belief-action distinction is still of some importance though as there remains
an absolute prohibition of governmental proscription of beliefs.203[150]
The Free Exercise Clause accords absolute protection to individual
religious convictions and beliefs204[151] and proscribes government from
questioning a persons beliefs or imposing penalties or disabilities based
solely on those beliefs. The Clause extends protection to both beliefs and
unbelief. Thus, in Torcaso v. Watkins,205[152] a unanimous Court struck
down a state law requiring as a qualification for public office an oath
declaring belief in the existence of God. The protection also allows courts
to look into the good faith of a person in his belief, but prohibits inquiry

into the truth of a persons religious beliefs. As held in United States v.

Ballard,206[153] (h)eresy trials are foreign to the Constitution. Men may
believe what they cannot prove. They may not be put to the proof of their
religious doctrines or beliefs.
Next to belief which enjoys virtually absolute protection,
religious speech and expressive religious conduct are accorded the
highest degree of protection. Thus, in the 1940 case of Cantwell v.
Connecticut,207[154] the Court struck down a state law prohibiting door-todoor solicitation for any religious or charitable cause without prior approval
of a state agency. The law was challenged by Cantwell, a member of the
Jehovahs Witnesses which is committed to active proselytizing. The Court
invalidated the state statute as the prior approval necessary was held to be a
censorship of religion prohibited by the Free Exercise Clause. The Court
held, viz:
In the realm of religious faith, and in that of political
belief, sharp differences arise. In both fields the tenets of one
may seem the rankest error to his neighbor. To persuade others
to his point of view, the pleader, as we know, resorts to
exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement. But
the people of this nation have ordained in the light of history,
that, in spite of the probability of excesses and abuses, these
liberties are, in the long view, essential to enlightened opinion
and right conduct on the part of citizens of a democracy.208[155]
Cantwell took a step forward from the protection afforded by the Reynolds
case in that it not only affirmed protection of belief but also freedom to act
for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom
to believe and freedom to act. The first is absolute but, in the
nature of things, the second cannot be. Conduct remains
subject to regulation for the protection of society. . . In every
case, the power to regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the
protected freedom. (emphasis supplied)209[156]
The Court stated, however, that government had the power to regulate the
times, places, and manner of solicitation on the streets and assure the peace
and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of
Jeanette,210[157] ruled that police could not prohibit members of the
Jehovahs Witnesses from peaceably and orderly proselytizing on Sundays
merely because other citizens complained. In another case likewise
involving the Jehovahs Witnesses, Niemotko v. Maryland,211[158] the Court
unanimously held unconstitutional a city councils denial of a permit to the
Jehovahs Witnesses to use the city park for a public meeting. The city
councils refusal was because of the unsatisfactory answers of the
Jehovahs Witnesses to questions about Catholicism, military service, and
other issues. The denial of the public forum was considered blatant
censorship. While protected, religious speech in the public forum is still
subject to reasonable time, place and manner regulations similar to nonreligious speech. Religious proselytizing in congested areas, for example,
may be limited to certain areas to maintain the safe and orderly flow of
pedestrians and vehicular traffic as held in the case of Heffron v.

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International Society for Krishna Consciousness.212[159]

The least protected under the Free Exercise Clause is religious
conduct, usually in the form of unconventional religious practices.
Protection in this realm depends on the character of the action and the
government rationale for regulating the action. 213[160] The Mormons
religious conduct of polygamy is an example of unconventional religious
practice. As discussed in the Reynolds case above, the Court did not afford
protection to the practice. Reynolds was reiterated in the 1890 case of
Davis again involving Mormons, where the Court held, viz: (c)rime is not
the less odious because sanctioned by what any particular sect may
designate as religion.214[161]
The belief-action test in Reynolds and Davis proved unsatisfactory.
Under this test, regulation of religiously dictated conduct would be upheld
no matter how central the conduct was to the exercise of religion and no
matter how insignificant was the governments non-religious regulatory
interest so long as the government is proscribing action and not belief.
Thus, the Court abandoned the simplistic belief-action distinction and
instead recognized the deliberate-inadvertent distinction, i.e., the
distinction between deliberate state interference of religious exercise for
religious reasons which was plainly unconstitutional and governments
inadvertent interference with religion in pursuing some secular objective. 215
[162]
In the 1940 case of Minersville School District v. Gobitis, 216[163] the
Court upheld a local school board requirement that all public school
students participate in a daily flag salute program, including the Jehovahs
Witnesses who were forced to salute the American flag in violation of their
religious training, which considered flag salute to be worship of a graven
image. The Court recognized that the general requirement of compulsory
flag salute inadvertently burdened the Jehovah Witnesses practice of their
religion, but justified the government regulation as an appropriate means of
attaining national unity, which was the basis of national security. Thus,
although the Court was already aware of the deliberate-inadvertent
distinction in government interference with religion, it continued to hold
that the Free Exercise Clause presented no problem to interference with
religion that was inadvertent no matter how serious the interference, no
matter how trivial the states non-religious objectives, and no matter how
many alternative approaches were available to the state to pursue its
objectives with less impact on religion, so long as government was acting in
pursuit of a secular objective.
Three years later, the Gobitis decision was overturned in West
Virginia v. Barnette217[164] which involved a similar set of facts and issue.
The Court recognized that saluting the flag, in connection with the pledges,
was a form of utterance and the flag salute program was a compulsion of
students to declare a belief. The Court ruled that compulsory unification of
opinions leads only to the unanimity of the graveyard and exempt the
students who were members of the Jehovahs Witnesses from saluting the
flag. A close scrutiny of the case, however, would show that it was decided
not on the issue of religious conduct as the Court said, (n)or does the issue
as we see it turn on ones possession of particular religious views or the
sincerity with which they are held. While religion supplies appellees
motive for enduring the discomforts of making the issue in this case, many
citizens who do not share these religious views hold such a compulsory rite
to infringe constitutional liberty of the individual. (emphasis
supplied)218[165] The Court pronounced, however, that, freedoms of speech
and of press, of assembly, and of worship . . . are susceptible only of
restriction only to prevent grave and immediate danger to interests

which the state may lawfully protect.219[166] The Court seemed to

recognize the extent to which its approach in Gobitis subordinated the
religious liberty of political minorities - a specially protected constitutional
value - to the common everyday economic and public welfare objectives of
the majority in the legislature. This time, even inadvertent interference with
religion must pass judicial scrutiny under the Free Exercise Clause with
only grave and immediate danger sufficing to override religious liberty. But
the seeds of this heightened scrutiny would only grow to a full flower in the
1960s.220[167]
Nearly a century after Reynolds employed the belief-action test, the
Warren Court began the modern free exercise jurisprudence. 221[168] A twopart balancing test was established in Braunfeld v. Brown222[169] where the
Court considered the constitutionality of applying Sunday closing laws to
Orthodox Jews whose beliefs required them to observe another day as the
Sabbath and abstain from commercial activity on Saturday. Chief Justice
Warren, writing for the Court, found that the law placed a severe burden on
Sabattarian retailers. He noted, however, that since the burden was the
indirect effect of a law with a secular purpose, it would violate the Free
Exercise Clause only if there were alternative ways of achieving the
states interest. He employed a two-part balancing test of validity where
the first step was for plaintiff to show that the regulation placed a real
burden on his religious exercise. Next, the burden would be upheld only if
the state showed that it was pursuing an overriding secular goal by the
means which imposed the least burden on religious practices. 223[170] The
Court found that the state had an overriding secular interest in setting aside
a single day for rest, recreation and tranquility and there was no alternative
means of pursuing this interest but to require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in
the 1963 case of Sherbert v. Verner.224[171] This test was similar to the twopart balancing test in Braunfeld, 225[172] but this latter test stressed that the
state interest was not merely any colorable state interest, but must be
paramount and compelling to override the free exercise claim. In this
case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal
to work on Saturdays on religious grounds. Her claim was denied. She
sought recourse in the Supreme Court. In laying down the standard for
determining whether the denial of benefits could withstand constitutional
scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to
Saturday work constitutes no conduct prompted by religious
principles of a kind within the reach of state legislation. If,
therefore, the decision of the South Carolina Supreme Court is
to withstand appellants constitutional challenge, it must be
either because her disqualification as a beneficiary
represents no infringement by the State of her
constitutional rights of free exercise, or because any
incidental burden on the free exercise of appellants
religion may be justified by a compelling state interest in
the regulation of a subject within the States constitutional
power to regulate. . . NAACP v. Button, 371 US 415, 438 9
L ed 2d 405, 421, 83 S Ct 328.226[173] (emphasis supplied)

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The Court stressed that in the area of religious liberty, it is basic that it
is not sufficient to merely show a rational relationship of the
substantial infringement to the religious right and a colorable state
interest. (I)n this highly sensitive constitutional area, [o]nly the gravest
abuses, endangering paramount interests, give occasion for permissible
limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct
315.227[174] The Court found that there was no such compelling state interest
to override Sherberts religious liberty. It added that even if the state could
show that Sherberts exemption would pose serious detrimental effects to
the unemployment compensation fund and scheduling of work, it was
incumbent upon the state to show that no alternative means of regulations
would address such detrimental effects without infringing religious liberty.
The state, however, did not discharge this burden. The Court thus carved
out for Sherbert an exemption from the Saturday work requirement that
caused her disqualification from claiming the unemployment benefits. The
Court reasoned that upholding the denial of Sherberts benefits would force
her to choose between receiving benefits and following her religion. This
choice placed the same kind of burden upon the free exercise of religion as
would a fine imposed against (her) for her Saturday worship. This
germinal case of Sherbert firmly established the exemption doctrine, 228[175]
viz:

were made, it would be hard to justify not allowing a similar exemption

from general federal taxes where the taxpayer argues that his religious
beliefs require him to reduce or eliminate his payments so that he will not
contribute to the governments war-related activities, for example.

It is certain that not every conscience can be

accommodated by all the laws of the land; but when general
laws conflict with scruples of conscience, exemptions ought
to be granted unless some compelling state interest
intervenes.

It follows that in order for Wisconsin to compel school

attendance beyond the eighth grade against a claim that such
attendance interferes with the practice of a legitimate religious
belief, it must appear either that the State does not deny
the free exercise of religious belief by its requirement, or
that there is a state interest of sufficient magnitude to
override the interest claiming protection under the Free
Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the
Religion Clauses had specially and firmly fixed the right of
free exercise of religious beliefs, and buttressing this
fundamental right was an equally firm, even if less explicit,
prohibition against the establishment of any religion. The
values underlying these two provisions relating to religion
have been zealously protected, sometimes even at the expense
of other interests of admittedly high social importance. . .

The strict scrutiny and compelling state interest test significantly

increased the degree of protection afforded to religiously motivated
conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies that
collided with religious practices. Although the members of the Court often
disagreed over which governmental interests should be considered
compelling, thereby producing dissenting and separate opinions in religious
conduct cases, this general test established a strong presumption in
favor of the free exercise of religion.234[181]
Heightened scrutiny was also used in the 1972 case of Wisconsin v.
Yoder235[182] where the Court upheld the religious practice of the Old Order
Amish faith over the states compulsory high school attendance law. The
Amish parents in this case did not permit secular education of their children
beyond the eighth grade. Chief Justice Burger, writing for the majority,
held, viz:

Thus, in a short period of twenty-three years from Gobitis to Sherbert (or

even as early as Braunfeld), the Court moved from the doctrine that
inadvertent or incidental interferences with religion raise no problem under
the Free Exercise Clause to the doctrine that such interferences violate the
Free Exercise Clause in the absence of a compelling state interest - the
highest level of constitutional scrutiny short of a holding of a per se
violation. Thus, the problem posed by the belief-action test and the
deliberate-inadvertent distinction was addressed.229[176]
Throughout the 1970s and 1980s under the Warren, and afterwards,
the Burger Court, the rationale in Sherbert continued to be applied. In
Thomas v. Review Board 230[177] and Hobbie v. Unemployment Appeals
Division,231[178] for example, the Court reiterated the exemption doctrine and
held that in the absence of a compelling justification, a state could not
withhold unemployment compensation from an employee who resigned or
was discharged due to unwillingness to depart from religious practices and
beliefs that conflicted with job requirements. But not every governmental
refusal to allow an exemption from a regulation which burdens a sincerely
held religious belief has been invalidated, even though strict or heightened
scrutiny is applied. In United States v. Lee,232[179] for instance, the Court
using strict scrutiny and referring to Thomas, upheld the federal
governments refusal to exempt Amish employers who requested for
exemption from paying social security taxes on wages on the ground of
religious beliefs. The Court held that (b)ecause the broad public interest in
maintaining a sound tax system is of such a high order, religious belief in
conflict with the payment of taxes affords no basis for resisting the
tax.233[180] It reasoned that unlike in Sherbert, an exemption would
significantly impair governments achievement of its objective - the fiscal
vitality of the social security system; mandatory participation is
indispensable to attain this objective. The Court noted that if an exemption

The essence of all that has been said and written on the
subject is that only those interests of the highest order and
those not otherwise served can overbalance legitimate
claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that that
religiously grounded conduct is always outside the protection
of the Free Exercise Clause. It is true that activities of
individuals, even when religiously based, are often subject to
regulation by the States in the exercise of their undoubted
power to promote the health, safety, and general welfare, or
the Federal government in the exercise of its delegated powers
. . . But to agree that religiously grounded conduct must
often be subject to the broad police power of the State is
not to deny that there are areas of conduct protected by
the Free Exercise Clause of the First Amendment and thus
beyond the power of the State to control, even under
regulations of general applicability. . . .This case, therefore,
does not become easier because respondents were convicted
for their actions in refusing to send their children to the
public high school; in this context belief and action cannot be
neatly confined in logic-tight compartments. . . 236[183]

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The onset of the 1990s, however, saw a major setback in the

protection afforded by the Free Exercise Clause. In Employment
Division, Oregon Department of Human Resources v. Smith,237[184] the
sharply divided Rehnquist Court dramatically departed from the
heightened scrutiny and compelling justification approach and imposed
serious limits on the scope of protection of religious freedom afforded by
the First Amendment. In this case, the well-established practice of the
Native American Church, a sect outside the Judeo-Christian mainstream of

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American religion, came in conflict with the states interest in prohibiting

the use of illicit drugs. Oregons controlled substances statute made the
possession of peyote a criminal offense. Two members of the church, Smith
and Black, worked as drug rehabilitation counselors for a private social
service agency in Oregon. Along with other church members, Smith and
Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony
practiced by Native Americans for hundreds of years. The social service
agency fired Smith and Black citing their use of peyote as job-related
misconduct. They applied for unemployment compensation, but the
Oregon Employment Appeals Board denied their application as they were
discharged for job-related misconduct. Justice Scalia, writing for the
majority, ruled that if prohibiting the exercise of religion . . . is . . .
merely the incidental effect of a generally applicable and otherwise
valid law, the First Amendment has not been offended. In other words,
the Free Exercise Clause would be offended only if a particular religious
practice were singled out for proscription. The majority opinion relied
heavily on the Reynolds case and in effect, equated Oregons drug
prohibition law with the anti-polygamy statute in Reynolds. The relevant
portion of the majority opinion held, viz:
We have never invalidated any governmental action on
the basis of the Sherbert test except the denial of
unemployment compensation.
Even if we were inclined to breathe into Sherbert some
life beyond the unemployment compensation field, we would
not apply it to require exemptions from a generally applicable
criminal law. . .
We conclude today that the sounder approach, and
the approach in accord with the vast majority of our
precedents, is to hold the test inapplicable to such
challenges. The governments ability to enforce generally
applicable prohibitions of socially harmful conduct, like its
ability to carry out other aspects of public policy, cannot
depend on measuring the effects of a governmental action on a
religious objectors spiritual development. . . .To make an
individuals obligation to obey such a law contingent upon
the laws coincidence with his religious beliefs except
where the States interest is compelling - permitting
him, by virtue of his beliefs, to become a law unto
himself, . . . - contradicts both constitutional tradition
and common sense.
Justice OConnor wrote a concurring opinion pointing out that the
majoritys rejection of the compelling governmental interest test was the
most controversial part of the decision. Although she concurred in the result
that the Free Exercise Clause had not been offended, she sharply criticized
the majority opinion as a dramatic departure from well-settled First
Amendment jurisprudence. . . and . . . (as) incompatible with our Nations
fundamental commitment to religious liberty. This portion of her
concurring opinion was supported by Justices Brennan, Marshall and
Blackmun who dissented from the Courts decision. Justice OConnor
asserted that (t)he compelling state interest test effectuates the First
Amendments command that religious liberty is an independent liberty,
that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless
required by clear and compelling government interest of the highest
order. Justice Blackmun registered a separate dissenting opinion, joined
by Justices Brennan and Marshall. He charged the majority with
mischaracterizing precedents and overturning. . . settled law concerning
the Religion Clauses of our Constitution. He pointed out that the Native
American Church restricted and supervised the sacramental use of peyote.
Thus, the state had no significant health or safety justification for regulating
the sacramental drug use. He also observed that Oregon had not attempted
to prosecute Smith or Black, or any Native Americans, for that matter, for
the sacramental use of peyote. In conclusion, he said that Oregons interest
in enforcing its drug laws against religious use of peyote (was) not
sufficiently compelling to outweigh respondents right to the free exercise
of their religion.

ignorance or sensitivity of the religious and political majority is no less an

interference with the minoritys religious freedom. If the regulation had
instead restricted the majoritys religious practice, the majoritarian
legislative process would in all probability have modified or rejected the
regulation. Thus, the imposition of the political majoritys non-religious
objectives at the expense of the minoritys religious interests implements
the majoritys religious viewpoint at the expense of the minoritys. Second,
government impairment of religious liberty would most often be of the
inadvertent kind as in Smith considering the political culture where direct
and deliberate regulatory imposition of religious orthodoxy is nearly
inconceivable. If the Free Exercise Clause could not afford protection to
inadvertent interference, it would be left almost meaningless. Third, the
Reynolds-Gobitis-Smith doctrine simply defies common sense. The state
should not be allowed to interfere with the most deeply held fundamental
religious convictions of an individual in order to pursue some trivial state
economic or bureaucratic objective. This is especially true when there are
alternative approaches for the state to effectively pursue its objective
without serious inadvertent impact on religion.239[186]
Thus, the Smith decision has been criticized not only for increasing
the power of the state over religion but as discriminating in favor of
mainstream religious groups against smaller, more peripheral groups who
lack legislative clout,240[187] contrary to the original theory of the First
Amendment.241[188] Undeniably, claims for judicial exemption emanate
almost invariably from relatively politically powerless minority religions
and Smith virtually wiped out their judicial recourse for exemption. 242[189]
Thus, the Smith decision elicited much negative public reaction especially
from the religious community, and commentaries insisted that the Court
was allowing the Free Exercise Clause to disappear.243[190] So much was the
uproar that a majority in Congress was convinced to enact the Religious
Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited
government at all levels from substantially burdening a persons free
exercise of religion, even if such burden resulted from a generally
applicable rule, unless the government could demonstrate a compelling
state interest and the rule constituted the least restrictive means of
furthering that interest.244[191] RFRA, in effect, sought to overturn the
substance of the Smith ruling and restore the status quo prior to Smith.
Three years after the RFRA was enacted, however, the Court, dividing 6 to
3, declared the RFRA unconstitutional in City of Boerne v. Flores.245[192]
The Court ruled that RFRA contradicts vital principles necessary to
maintain separation of powers and the federal balance. It emphasized the
primacy of its role as interpreter of the Constitution and unequivocally
rejected, on broad institutional grounds, a direct congressional challenge of
final judicial authority on a question of constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah246[193] which was ruled consistent with the Smith doctrine. This
case involved animal sacrifice of the Santeria, a blend of Roman
Catholicism and West African religions brought to the Carribean by East
African slaves. An ordinance made it a crime to unnecessarily kill,
torment, torture, or mutilate an animal in public or private ritual or
ceremony not for the primary purpose of food consumption. The ordinance
came as a response to the local concern over the sacrificial practices of the
Santeria. Justice Kennedy, writing for the majority, carefully pointed out

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The Court went back to the Reynolds and Gobitis doctrine in Smith.
The Courts standard in Smith virtually eliminated the requirement that the
government justify with a compelling state interest the burdens on religious
exercise imposed by laws neutral toward religion. The Smith doctrine is
highly unsatisfactory in several respects and has been criticized as
exhibiting a shallow understanding of free exercise jurisprudence. 238[185]
First, the First amendment was intended to protect minority religions from
the tyranny of the religious and political majority. A deliberate regulatory
interference with minority religious freedom is the worst form of this
tyranny. But regulatory interference with a minority religion as a result of

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that the questioned ordinance was not a generally applicable criminal

prohibition, but instead singled out practitioners of the Santeria in that it
forbade animal slaughter only insofar as it took place within the context of
religious rituals.

the school board was merely furthering the states legitimate interest in
getting children regardless of their religion, safely and expeditiously to
and from accredited schools. The Court, after narrating the history of the
First Amendment in Virginia, interpreted the Establishment Clause, viz:

It may be seen from the foregoing cases that under the Free Exercise
Clause, religious belief is absolutely protected, religious speech and
proselytizing are highly protected but subject to restraints applicable to
non-religious speech, and unconventional religious practice receives less
protection; nevertheless conduct, even if its violates a law, could be
accorded protection as shown in Wisconsin.247[194]

The establishment of religion clause of the First

Amendment means at least this: Neither a state nor the
Federal Government can set up a church. Neither can pass
laws which aid one religion, aid all religions, or prefer one
religion over another. Neither can force nor influence a
person to go to or remain away from church against his will or
force him to profess a belief or disbelief in any religion. No
person can be punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance.
No tax in any amount, large or small, can be levied to support
any religious activities or institutions, whatever they may be
called, or whatever form they may adopt to teach or practice
religion. Neither a state nor the Federal Government can,
openly or secretly participate in the affairs of any religious
organizations or groups and vice versa. In the words of
Jefferson, the clause against establishment of religion by
law was intended to erect a wall of separation between
Church and State.255[202]

B. Establishment Clause

The Courts first encounter with the Establishment Clause was in

the 1947 case of Everson v. Board of Education.248[195] Prior cases had
made passing reference to the Establishment Clause 249[196] and raised
establishment questions but were decided on other grounds. 250[197] It was in
the Everson case that the U.S. Supreme Court adopted Jeffersons
metaphor of a wall of separation between church and state as
encapsulating the meaning of the Establishment Clause. The often and
loosely used phrase separation of church and state does not appear in the
U.S. Constitution. It became part of U.S. jurisprudence when the Court in
the 1878 case of Reynolds v. United States 251[198] quoted Jeffersons famous
letter of 1802 to the Danbury Baptist Association in narrating the history of
the religion clauses, viz:
Believing with you that religion is a matter which lies
solely between man and his God; that he owes account to
none other for his faith or his worship; that the legislative
powers of the Government reach actions only, and not
opinions, I contemplate with sovereign reverence that act of
the whole American people which declared that their
Legislature should make no law respecting an establishment
of religion or prohibiting the free exercise thereof, thus
building a wall of separation between Church and State.252
[199]
(emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, (c)oming as
this does from an acknowledged leader of the advocates of the measure, it
may be accepted almost as an authoritative declaration of the scope and
effect of the amendment thus secured.253[200]
The interpretation of the Establishment Clause has in large part been
in cases involving education, notably state aid to private religious schools
and prayer in public schools.254[201] In Everson v. Board of Education, for
example, the issue was whether a New Jersey local school board could
reimburse parents for expenses incurred in transporting their children to and
from Catholic schools. The reimbursement was part of a general program
under which all parents of children in public schools and nonprofit private
schools, regardless of religion, were entitled to reimbursement for
transportation costs. Justice Hugo Black, writing for a sharply divided
Court, justified the reimbursements on the child benefit theory, i.e., that

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The Court then ended the opinion, viz:

The First Amendment has erected a wall between
church and state. That wall must be kept high and
impregnable. We could not approve the slightest breach. New
Jersey has not breached it here.256[203]
By 1971, the Court integrated the different elements of the Courts
Establishment Clause jurisprudence that evolved in the 1950s and 1960s
and laid down a three-pronged test in Lemon v. Kurtzman257[204] in
determining the constitutionality of policies challenged under the
Establishment Clause. This case involved a Pennsylvania statutory program
providing publicly funded reimbursement for the cost of teachers salaries,
textbooks, and instructional materials in secular subjects and a Rhode
Island statute providing salary supplements to teachers in parochial schools.
The Lemon test requires a challenged policy to meet the following criteria
to pass scrutiny under the Establishment Clause. First, the statute must
have a secular legislative purpose; second, its primary or principal
effect must be one that neither advances nor inhibits religion (Board of
Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct
1923 [1968]); finally, the statute must not foster an excessive
entanglement with religion. (Walz v.Tax Commission, 397 US 664, 668,
25 L Ed 2d 697, 701, 90 S Ct 1409 [1970]) (emphasis supplied)258[205]
Using this test, the Court held that the Pennsylvania statutory program and
Rhode Island statute were unconstitutional as fostering excessive
entanglement between government and religion.
The most controversial of the education cases involving the
Establishment Clause are the school prayer decisions. Few decisions of the
modern Supreme Court have been criticized more intensely than the school
prayer decisions of the early 1960s. 259[206] In the 1962 case of Engel v.
Vitale,260[207] the Court invalidated a New York Board of Regents policy that
established the voluntary recitation of a brief generic prayer by children in
the public schools at the start of each school day. The majority opinion
written by Justice Black stated that in this country it is no part of the
business of government to compose official prayers for any group of the
American people to recite as part of a religious program carried on by
government. In fact, history shows that this very practice of establishing

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governmentally composed prayers for religious services was one of the

reasons that caused many of the early colonists to leave England and seek
religious freedom in America. The Court called to mind that the first and
most immediate purpose of the Establishment Clause rested on the belief
that a union of government and religion tends to destroy government and to
degrade religion. The following year, the Engel decision was reinforced in
Abington School District v. Schempp261[208] and Murray v. Curlett262[209]
where the Court struck down the practice of Bible reading and the recitation
of the Lords prayer in the Pennsylvania and Maryland schools. The Court
held that to withstand the strictures of the Establishment Clause, a statute
must have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. It reiterated, viz:
The wholesome neutrality of which this Courts cases
speak thus stems from a recognition of the teachings of
history that powerful sects or groups might bring about a
fusion of governmental and religious functions or a concert or
dependency of one upon the other to the end that official
support of the State of Federal Government would be placed
behind the tenets of one or of all orthodoxies. This the
Establishment Clause prohibits. And a further reason for
neutrality is found in the Free Exercise Clause, which
recognizes the value of religious training, teaching and
observance and, more particularly, the right of every person to
freely choose his own course with reference thereto, free of
any compulsion from the state.263[210]
The school prayer decisions drew furious reactions. Religious leaders and
conservative members of Congress and resolutions passed by several state
legislatures condemned these decisions. 264[211] On several occasions,
constitutional amendments have been introduced in Congress to overturn
the school prayer decisions. Still, the Court has maintained its position and
has in fact reinforced it in the 1985 case of Wallace v. Jaffree265[212] where
the Court struck down an Alabama law that required public school students
to observe a moment of silence for the purpose of meditation or voluntary
prayer at the start of each school day.
Religious instruction in public schools has also pressed the Court to
interpret the Establishment Clause. Optional religious instruction within
public school premises and instructional time were declared offensive of the
Establishment Clause in the 1948 case of McCollum v. Board of
Education,266[213] decided just a year after the seminal Everson case. In this
case, interested members of the Jewish, Roman Catholic and a few
Protestant faiths obtained permission from the Board of Education to offer
classes in religious instruction to public school students in grades four to
nine. Religion classes were attended by pupils whose parents signed printed
cards requesting that their children be permitted to attend. The classes were
taught in three separate groups by Protestant teachers, Catholic priests and a
Jewish rabbi and were held weekly from thirty to forty minutes during
regular class hours in the regular classrooms of the school building. The
religious teachers were employed at no expense to the school authorities but
they were subject to the approval and supervision of the superintendent of
schools. Students who did not choose to take religious instruction were
required to leave their classrooms and go to some other place in the school
building for their secular studies while those who were released from their
secular study for religious instruction were required to attend the religious
classes. The Court held that the use of tax-supported property for religious
instruction and the close cooperation between the school authorities and the
religious council in promoting religious education amounted to a prohibited
use of tax-established and tax-supported public school system to aid
religious groups spread their faith. The Court rejected the claim that the
Establishment Clause only prohibited government preference of one

religion over another and not an impartial governmental assistance of all

religions. In Zorach v. Clauson,267[214] however, the Court upheld released
time programs allowing students in public schools to leave campus upon
parental permission to attend religious services while other students
attended study hall. Justice Douglas, the writer of the opinion, stressed that
(t)he First Amendment does not require that in every and all respects there
shall be a separation of Church and State. The Court distinguished Zorach
from McCollum, viz:
In the McCollum case the classrooms were used for
religious instruction and the force of the public school was
used to promote that instruction. . . We follow the McCollum
case. But we cannot expand it to cover the present released
time program unless separation of Church and State means
that public institutions can make no adjustments of their
schedules to accommodate the religious needs of the people.
We cannot read into the Bill of Rights such a philosophy of
hostility to religion.268[215]
In the area of government displays or affirmations of belief, the
Court has given leeway to religious beliefs and practices which have
acquired a secular meaning and have become deeply entrenched in history.
For instance, in McGowan v. Maryland,269[216] the Court upheld laws that
prohibited certain businesses from operating on Sunday despite the obvious
religious underpinnings of the restrictions. Citing the secular purpose of the
Sunday closing laws and treating as incidental the fact that this day of rest
happened to be the day of worship for most Christians, the Court held, viz:
It is common knowledge that the first day of the week
has come to have special significance as a rest day in this
country. People of all religions and people with no religion
regard Sunday as a time for family activity, for visiting friends
and relatives, for later sleeping, for passive and active
entertainments, for dining out, and the like.270[217]
In the 1983 case of Marsh v. Chambers,271[218] the Court refused to
invalidate Nebraskas policy of beginning legislative sessions with prayers
offered by a Protestant chaplain retained at the taxpayers expense. The
majority opinion did not rely on the Lemon test and instead drew
heavily from history and the need for accommodation of popular
religious beliefs, viz:
In light of the unambiguous and unbroken history of
more than 200 years, there can be no doubt that the practice of
opening legislative sessions with prayer has become the fabric
of our society. To invoke Divine guidance on a public body
entrusted with making the laws is not, in these circumstances,
an establishment of religion or a step toward establishment;
it is simply a tolerable acknowledgement of beliefs widely
held among the people of this country. As Justice Douglas
observed, (w)e are a religious people whose institutions
presuppose a Supreme Being. (Zorach c. Clauson, 343 US
306, 313 [1952])272[219] (emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court
would inevitably be embarrassed if it were to attempt to strike down a
practice that occurs in nearly every legislature in the United States,
including the U.S. Congress. 273[220] That Marsh was not an aberration is

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suggested by subsequent cases. In the 1984 case of Lynch v. Donnelly,274

[221]
the Court upheld a city-sponsored nativity scene in Rhode Island. By a
5-4 decision, the majority opinion hardly employed the Lemon test and
again relied on history and the fact that the creche had become a
neutral harbinger of the holiday season for many, rather than a
symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax
exemption. By tradition, church and charitable institutions have been
exempt from local property taxes and their income exempt from federal and
state income taxes. In the 1970 case of Walz v. Tax Commission,275[222] the
New York City Tax Commissions grant of property tax exemptions to
churches as allowed by state law was challenged by Walz on the theory that
this required him to subsidize those churches indirectly. The Court upheld
the law stressing its neutrality, viz:
It has not singled out one particular church or religious
group or even churches as such; rather, it has granted
exemptions to all houses of religious worship within a broad
class of property owned by non-profit, quasi-public
corporations . . . The State has an affirmative policy that
considers these groups as beneficial and stabilizing influences
in community life and finds this classification useful,
desirable, and in the public interest.276[223]
The Court added that the exemption was not establishing religion but
sparing the exercise of religion from the burden of property taxation levied
on private profit institutions277[224] and preventing excessive entanglement
between state and religion. At the same time, the Court acknowledged the
long-standing practice of religious tax exemption and the Courts traditional
deference to legislative bodies with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric
of our national life, beginning with pre-Revolutionary
colonial times, than for the government to exercise . . . this
kind of benevolent neutrality toward churches and
religious exercise generally so long as none was favored
over others and none suffered interference.278[225] (emphasis
supplied)

US 602, 618-619 [1971]). It is constitutional for the

government to provide religious school pupils with books
(Board of Education v. Allen, 392 US 236, 238 [1968]), but
not with maps (Wolman v. Walter, 433 US 229, 249-51
[1977]); with bus rides to religious schools (Everson v. Board
of Education, 330 US 1, 17 [1947]), but not from school to a
museum on a field trip (Wolman v. Walter, 433 US 229, 25255 [1977]); with cash to pay for state-mandated standardized
tests (Committee for Pub. Educ. and Religious Liberty v.
Regan, 444 US 646, 653-54 [1980]), but not to pay for safetyrelated maintenance (Committee for Pub. Educ v. Nyquist,
413 US 756, 774-80 [1973]). It is a mess.279[226]
But the purpose of the overview is not to review the entirety of the
U.S. religion clause jurisprudence nor to extract the prevailing case law
regarding particular religious beliefs or conduct colliding with particular
government regulations. Rather, the cases discussed above suffice to show
that, as legal scholars observe, this area of jurisprudence has demonstrated
two main standards used by the Court in deciding religion clause cases:
separation (in the form of strict separation or the tamer version of
strict neutrality or separation) and benevolent neutrality or
accommodation. The weight of current authority, judicial and in terms of
sheer volume, appears to lie with the separationists, strict or tame. 280[227] But
the accommodationists have also attracted a number of influential scholars
and jurists.281[228] The two standards producing two streams of jurisprudence
branch out respectively from the history of the First Amendment in England
and the American colonies and climaxing in Virginia as narrated in this
opinion and officially acknowledged by the Court in Everson, and from
American societal life which reveres religion and practices age-old
religious traditions. Stated otherwise, separation - strict or tame - protects
the principle of church-state separation with a rigid reading of the principle
while benevolent neutrality protects religious realities, tradition and
established practice with a flexible reading of the principle. 282[229] The latter
also appeals to history in support of its position, viz:
The opposing school of thought argues that the First
Congress intended to allow government support of religion,
at least as long as that support did not discriminate in
favor of one particular religion. . . the Supreme Court has
overlooked many important pieces of history. Madison, for
example, was on the congressional committee that appointed a
chaplain, he declared several national days of prayer and
fasting during his presidency, and he sponsored Jeffersons
bill for punishing Sabbath breakers; moreover, while
president, Jefferson allowed federal support of religious
missions to the Indians. . . And so, concludes one recent book,
there is no support in the Congressional records that either
the First Congress, which framed the First Amendment, or its
principal author and sponsor, James Madison, intended that
Amendment to create a state of complete independence
between religion and government. In fact, the evidence in the
public documents goes the other way.283[230] (emphasis
supplied)

C. Strict Neutrality v. Benevolent Neutrality

To be sure, the cases discussed above, while citing many landmark

decisions in the religious clauses area, are but a small fraction of the
hundreds of religion clauses cases that the U.S. Supreme Court has passed
upon. Court rulings contrary to or making nuances of the above cases may
be cited. Professor McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a
Presbyterian minister to lead the legislature in daily prayers
(Marsh v. Chambers, 463 US783, 792-93[1983]), but
unconstitutional for a state to set aside a moment of silence in
the schools for children to pray if they want to (Wallace v.
Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a
state to require employers to accommodate their employees
work schedules to their sabbath observances (Estate of
Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but
constitutionally mandatory for a state to require employers to
pay workers compensation when the resulting inconsistency
between work and sabbath leads to discharge (. . .Sherbert v.
Verner, 374 US 398, 403-4 [1963]). It is constitutional for the
government to give money to religiously-affiliated
organizations to teach adolescents about proper sexual
behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but
not to teach them science or history (Lemon v. Kurtzman, 403

To succinctly and poignantly illustrate the historical basis of benevolent

neutrality that gives room for accommodation, less than twenty-four
hours after Congress adopted the First Amendments prohibition on laws
respecting an establishment of religion, Congress decided to express its
thanks to God Almighty for the many blessings enjoyed by the nation with
a resolution in favor of a presidential proclamation declaring a national day
of Thanksgiving and Prayer. Only two members of Congress opposed the
resolution, one on the ground that the move was a mimicking of European
customs, where they made a mere mockery of thanksgivings, the other on
establishment clause concerns. Nevertheless, the salutary effect of
thanksgivings throughout Western history was acknowledged and the

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motion was passed without further recorded discussion. 284[231] Thus,

accommodationists also go back to the framers to ascertain the meaning of
the First Amendment, but prefer to focus on acts rather than words.
Contrary to the claim of separationists that rationalism pervaded America in
the late 19th century and that America was less specifically Christian during
those years than at any other time before or since, 285[232] accommodationaists
claim that American citizens at the time of the Constitutions origins were a
remarkably religious people in particularly Christian terms.286[233]
The two streams of jurisprudence - separationist or
accommodationist - are anchored on a different reading of the wall of
separation. The strict separtionist view holds that Jefferson meant the
wall of separation to protect the state from the church. Jefferson was a
man of the Enlightenment Era of the eighteenth century, characterized by
the rationalism and anticlericalism of that philosophic bent. 287[234] He has
often been regarded as espousing Deism or the rationalistic belief in a
natural religion and natural law divorced from its medieval connection with
divine law, and instead adhering to a secular belief in a universal
harmony.288[235] Thus, according to this Jeffersonian view, the Establishment
Clause being meant to protect the state from the church, the states hostility
towards religion allows no interaction between the two. 289[236] In fact, when
Jefferson became President, he refused to proclaim fast or thanksgiving
days on the ground that these are religious exercises and the Constitution
prohibited the government from intermeddling with religion. 290[237] This
approach erects an absolute barrier to formal interdependence of religion
and state. Religious institutions could not receive aid, whether direct or
indirect, from the state. Nor could the state adjust its secular programs to
alleviate burdens the programs placed on believers.291[238] Only the complete
separation of religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among political views
thus a strict wall of separation is necessary.292[239] Strict separation faces
difficulties, however, as it is deeply embedded in history and contemporary
practice that enormous amounts of aid, both direct and indirect, flow to
religion from government in return for huge amounts of mostly indirect aid
from religion. Thus, strict separationists are caught in an awkward position
of claiming a constitutional principle that has never existed and is never
likely to.293[240]
A tamer version of the strict separationist view, the strict neutrality
or separationist view is largely used by the Court, showing the Courts
tendency to press relentlessly towards a more secular society.294[241] It finds
basis in the Everson case where the Court declared that Jeffersons wall of
separation encapsulated the meaning of the First Amendment but at the

same time held that the First Amendment requires the state to be neutral
in its relations with groups of religious believers and non-believers; it does
not require the state to be their adversary. State power is no more to be
used so as to handicap religions than it is to favor them. (emphasis
supplied)295[242] While the strict neutrality approach is not hostile to religion,
it is strict in holding that religion may not be used as a basis for
classification for purposes of governmental action, whether the action
confers rights or privileges or imposes duties or obligations. Only secular
criteria may be the basis of government action. It does not permit, much
less require, accommodation of secular programs to religious belief. 296[243]
Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of
the religion clauses of the first amendment is that the freedom
and separation clauses should be read as a single precept that
government cannot utilize religion as a standard for action or
inaction because these clauses prohibit classification in terms
of religion either to confer a benefit or to impose a burden. 297
[244]

The Court has repeatedly declared that religious freedom means

government neutrality in religious matters and the Court has also repeatedly
interpreted this policy of neutrality to prohibit government from acting
except for secular purposes and in ways that have primarily secular
effects.298[245]
Prayer in public schools is an area where the Court has applied strict
neutrality and refused to allow any form of prayer, spoken or silent, in the
public schools as in Engel and Schempp.299[246] The McCollum case
prohibiting optional religious instruction within public school premises
during regular class hours also demonstrates strict neutrality. In these
education cases, the Court refused to uphold the government action as they
were based not on a secular but on a religious purpose. Strict neutrality was
also used in Reynolds and Smith which both held that if government acts
in pursuit of a generally applicable law with a secular purpose that merely
incidentally burdens religious exercise, the First Amendment has not been
offended. However, if the strict neutrality standard is applied in interpreting
the Establishment Clause, it could de facto void religious expression in the
Free Exercise Clause. As pointed out by Justice Goldberg in his concurring
opinion in Schempp, strict neutrality could lead to a brooding and
pervasive devotion to the secular and a passive, or even active, hostility to
the religious which is prohibited by the Constitution. 300[247] Professor
Laurence Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed
incompatible with the very idea of a free exercise clause. The
Framers, whatever specific applications they may have
intended, clearly envisioned religion as something special;
they enacted that vision into law by guaranteeing the free
exercise of religion but not, say, of philosophy or science. The
strict neutrality approach all but erases this distinction. Thus it
is not surprising that the Supreme Court has rejected strict
neutrality, permitting and sometimes mandating religious
classifications.301[248]

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285
286
287

The separationist approach, whether strict or tame, is caught in a dilemma

because while the Jeffersonian wall of separation captures the spirit of the
American ideal of church-state separation, in real life church and state are

288

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290

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299

293

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not and cannot be totally separate.302[249] This is all the more true in
contemporary times when both the government and religion are growing
and expanding their spheres of involvement and activity, resulting in the
intersection of government and religion at many points.303[250]
Consequently, the Court has also decided cases employing
benevolent neutrality. Benevolent neutrality which gives room for
accommodation is buttressed by a different view of the wall of
separation associated with Williams, founder of the Rhode Island colony.
In Mark DeWolfe Howes classic, The Garden and the Wilderness, he
asserts that to the extent the Founders had a wall of separation in mind, it
was unlike the Jeffersonian wall that is meant to protect the state from the
church; instead, the wall is meant to protect the church from the state, 304[251]
i.e., the garden of the church must be walled in for its own protection
from the wilderness of the world 305[252] with its potential for corrupting
those values so necessary to religious commitment. 306[253] Howe called this
the theological or evangelical rationale for church-state separation
while the wall espoused by enlightened statesmen such as Jefferson and
Madison, was a political rationale seeking to protect politics from
intrusions by the church.307[254] But it has been asserted that this contrast
between the Williams and Jeffersonian positions is more accurately
described as a difference in kinds or styles of religious thinking, not as a
conflict between religious and secular (political); the religious style
was biblical and evangelical in character while the secular style was
grounded in natural religion, more generic and philosophical in its religious
orientation.308[255]

Amendment and all that has been said by the Court is this:
that we will not tolerate either governmentally established
religion or governmental interference with religion. Short of
those expressly proscribed governmental acts there is room
for play in the joints productive of a benevolent neutrality
which will permit religious exercise to exist without
sponsorship and without interference.312[259] (emphasis
supplied)
The Zorach case expressed the doctrine of accommodation,313[260]
viz:
The First Amendment, however, does not say that in
every and all respects there shall be a separation of
Church and State. Rather, it studiously defines the
manner, the specific ways, in which there shall be no
concert or union or dependency one or the other. That is
the common sense of the matter. Otherwise, the state and
religion would be aliens to each other - hostile, suspicious,
and even unfriendly. Churches could not be required to pay
even property taxes. Municipalities would not be permitted to
render police or fire protection to religious groups. Policemen
who helped parishioners into their places of worship would
violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief
Executive; the proclamations making Thanksgiving Day a
holiday; so help me God in our courtroom oaths- these and
all other references to the Almighty that run through our laws,
our public rituals, our ceremonies would be flouting the First
Amendment. A fastidious atheist or agnostic could even object
to the supplication with which the Court opens each session:
God save the United States and this Honorable Court.

The Williams wall is, however, breached for the church is in the state
and so the remaining purpose of the wall is to safeguard religious liberty.
Williams view would therefore allow for interaction between church and
state, but is strict with regard to state action which would threaten the
integrity of religious commitment.309[256] His conception of separation is not
total such that it provides basis for certain interactions between church and
state dictated by apparent necessity or practicality.310[257] This theological
view of separation is found in Williams writings, viz:

xxxxxx
xxx

. . . when they have opened a gap in the hedge or wall

of separation between the garden of the church and the
wilderness of the world, God hath ever broke down the wall
itself, removed the candlestick, and made his garden a
wilderness, as this day. And that therefore if He will eer please
to restore His garden and paradise again, it must of necessity
be walled in peculiarly unto Himself from the world. . .311[258]

We are a religious people whose institutions

presuppose a Supreme Being. We guarantee the freedom to
worship as one chooses. . . When the state encourages
religious instruction or cooperates with religious
authorities by adjusting the schedule of public events, it
follows the best of our traditions. For it then respects the
religious nature of our people and accommodates the
public service to their spiritual needs. To hold that it may
not would be to find in the Constitution a requirement that
the government show a callous indifference to religious
groups. . . But we find no constitutional requirement
which makes it necessary for government to be hostile to
religion and to throw its weight against efforts to widen their
effective scope of religious influence.314[261] (emphases
supplied)

Chief Justice Burger spoke of benevolent neutrality in Walz, viz:

The general principle deducible from the First

302
303
304
305

Benevolent neutrality is congruent with the sociological proposition that

religion serves a function essential to the survival of society itself, thus
there is no human society without one or more ways of performing the
essential function of religion. Although for some individuals there may be
no felt need for religion and thus it is optional or even dispensable, for
society it is not, which is why there is no human society without one or
more ways of performing the essential function of religion. Even in
ostensibly atheistic societies, there are vigorous underground religion(s)
and surrogate religion(s) in their ideology.315[262] As one sociologist wrote:
It is widely held by students of society that there are
certain functional prerequisites without which society would
not continue to exist. At first glance, this seems to be obvious
- scarcely more than to say that an automobile could not exist,
as a going system, without a carburetor. . . Most writers list
religion among the functional prerequisites.316[263]

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308

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311

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Another noted sociologist, Talcott Parsons, wrote: There is no known

human society without something which modern social scientists would
classify as a religionReligion is as much a human universal as
language.317[264]
Benevolent neutrality thus recognizes that religion plays an
important role in the public life of the United States as shown by many
traditional government practices which, to strict neutrality, pose
Establishment Clause questions. Among these are the inscription of In God
We Trust on American currency, the recognition of America as one nation
under God in the official pledge of allegiance to the flag, the Supreme
Courts time-honored practice of opening oral argument with the invocation
God save the United States and this honorable Court, and the practice of
Congress and every state legislature of paying a chaplain, usually of a
particular Protestant denomination to lead representatives in prayer.318[265]
These practices clearly show the preference for one theological viewpoint
-the existence of and potential for intervention by a god - over the contrary
theological viewpoint of atheism. Church and government agencies also
cooperate in the building of low-cost housing and in other forms of poor
relief, in the treatment of alcoholism and drug addiction, in foreign aid and
other government activities with strong moral dimension.319[266] The
persistence of these de facto establishments are in large part explained by
the fact that throughout history, the evangelical theory of separation, i.e.,
Williams wall, has demanded respect for these de facto establishments.320
[267]
But the separationists have a different explanation. To characterize these
as de jure establishments according to the principle of the Jeffersonian wall,
the U.S. Supreme Court, the many dissenting and concurring opinions
explain some of these practices as de minimis instances of government
endorsement or as historic governmental practices that have largely lost
their religious significance or at least have proven not to lead the
government into further involvement with religion.321[268]
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under certain
circumstances. Accommodations are government policies that take religion
specifically into account not to promote the governments favored form of
religion, but to allow individuals and groups to exercise their religion
without hindrance. Their purpose or effect therefore is to remove a burden
on, or facilitate the exercise of, a persons or institutions religion. As
Justice Brennan explained, the government [may] take religion into
accountto exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and practices
would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may
flourish.322[269] (emphasis supplied) Accommodation is forbearance and not
alliance. it does not reflect agreement with the minority, but respect for the
conflict between the temporal and spiritual authority in which the minority
finds itself.323[270]
Accommodation is distinguished from strict neutrality in that the
latter holds that government should base public policy solely on secular
considerations, without regard to the religious consequences of its
actions. The debate between accommodation and strict neutrality is at base
a question of means: Is the freedom of religion best achieved when the

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321
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government is conscious of the effects of its action on the various religious

practices of its people, and seeks to minimize interferences with those
practices? Or is it best advanced through a policy of religious blindness keeping government aloof from religious practices and issues? An
accommodationist holds that it is good public policy, and sometimes
constitutionally required, for the state to make conscious and deliberate
efforts to avoid interference with religious freedom. On the other hand, the
strict neutrality adherent believes that it is good public policy, and also
constitutionally required, for the government to avoid religion-specific
policy even at the cost of inhibiting religious exercise.324[271]
There are strong and compelling reasons, however, to take the
accommodationist position rather than the strict neutrality position. First,
the accommodationist interpretation is most consistent with the
language of the First Amendment. The religion clauses contain two
parallel provisions, both specifically directed at religion. The government
may not establish religion and neither may government prohibit it.
Taken together, the religion clauses can be read most plausibly as warding
off two equal and opposite threats to religious freedom - government action
that promotes the (political) majoritys favored brand of religion and
government action that impedes religious practices not favored by the
majority. The substantive end in view is the preservation of the autonomy
of religious life and not just the formal process value of ensuring that
government does not act on the basis of religious bias. On the other hand,
strict neutrality interprets the religion clauses as allowing government to do
whatever it desires to or for religion, as long as it does the same to or for
comparable secular entities. Thus, for example, if government prohibits all
alcoholic consumption by minors, it can prohibit minors from taking part in
communion. Paradoxically, this view would make the religion clauses
violate the religion clauses, so to speak, since the religion clauses single out
religion by name for special protection. Second, the accommodationist
position best achieves the purposes of the First Amendment. The
principle underlying the First Amendment is that freedom to carry out
ones duties to a Supreme Being is an inalienable right, not one
dependent on the grace of legislature. Although inalienable, it is
necessarily limited by the rights of others, including the public right of
peace and good order. Nevertheless it is a substantive right and not merely a
privilege against discriminatory legislation. The accomplishment of the
purpose of the First Amendment requires more than the religion blindness
of strict neutrality. With the pervasiveness of government regulation,
conflicts with religious practices become frequent and intense. Laws that
are suitable for secular entities are sometimes inappropriate for religious
entities, thus the government must make special provisions to preserve a
degree of independence for religious entities for them to carry out their
religious missions according to their religious beliefs. Otherwise, religion
will become just like other secular entities subject to pervasive regulation
by majoritarian institutions. Third, the accommodationist interpretation
is particularly necessary to protect adherents of minority religions
from the inevitable effects of majoritarianism, which include ignorance
and indifference and overt hostility to the minority. In a democratic
republic, laws are inevitably based on the presuppositions of the majority,
thus not infrequently, they come into conflict with the religious scruples of
those holding different world views, even in the absence of a deliberate
intent to interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so necessary to the
common good that exceptions are intolerable. But in other instances, the
injury to religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility could
explain a refusal to make exemptions. Because of plural traditions,
legislators and executive officials are frequently willing to make such
exemptions when the need is brought to their attention, but this may not
always be the case when the religious practice is either unknown at the time
of enactment or is for some reason unpopular. In these cases, a
constitutional interpretation that allows accommodations prevents
needless injury to the religious consciences of those who can have an
influence in the legislature; while a constitutional interpretation that
requires accommodations extends this treatment to religious faiths that
are less able to protect themselves in the political arena. Fourth, the
accommodationist position is practical as it is a commonsensical way to
deal with the various needs and beliefs of different faiths in a pluralistic
nation. Without accommodation, many otherwise beneficial laws would
interfere severely with religious freedom. Aside from laws against serving
alcoholic beverages to minors conflicting with celebration of communion,
regulations requiring hard hats in construction areas can effectively exclude
Amish and Sikhs from the workplace, or employment anti-discrimination
laws can conflict with the Roman Catholic male priesthood, among others.
Exemptions from such laws are easy to craft and administer and contribute
much to promoting religious freedom at little cost to public policy. Without
exemptions, legislature would be frequently forced to choose between
violating religious conscience of a segment of the population or

324

dispensing with legislation it considers beneficial to society as a whole.

Exemption seems manifestly more reasonable than either of the
alternative: no exemption or no law.325[272]
Benevolent neutrality gives room for different kinds of
accommodation: those which are constitutionally compelled, i.e., required
by the Free Exercise Clause; and those which are discretionary or
legislative, i.e., and those not required by the Free Exercise Clause but
nonetheless permitted by the Establishment Clause.326[273] Some Justices of
the Supreme Court have also used the term accommodation to describe
government actions that acknowledge or express prevailing religious
sentiments of the community such as display of a religious symbol on
public property or the delivery of a prayer at public ceremonial events. 327[274]
Stated otherwise, using benevolent neutrality as a standard could result to
three situations of accommodation: those where accommodation is
required, those where it is permissible, and those where it is prohibited. In
the first situation, accommodation is required to preserve free exercise
protections and not unconstitutionally infringe on religious liberty or create
penalties for religious freedom. Contrary to the Smith declaration that free
exercise exemptions are intentional government advancement, these
exemptions merely relieve the prohibition on the free exercise thus
allowing the burdened religious adherent to be left alone. The state must
create exceptions to laws of general applicability when these laws threaten
religious convictions or practices in the absence of a compelling state
interest.328[275] By allowing such exemptions, the Free Exercise Clause does
not give believers the right or privilege to choose for themselves to override
socially-prescribed decision; it allows them to obey spiritual rather than
temporal authority329[276] for those who seriously invoke the Free Exercise
Clause claim to be fulfilling a solemn duty. Religious freedom is a matter
less of rights than duties; more precisely, it is a matter of rights derived
from duties. To deny a person or a community the right to act upon such a
duty can be justified only by appeal to a yet more compelling duty. Of
course, those denied will usually not find the reason for the denial
compelling. Because they may turn out to be right about the duty in
question, and because, even if they are wrong, religion bears witness to that
which transcends the political order, such denials should be rare and
painfully reluctant.330[277]
The Yoder case is an example where the Court held that the state
must accommodate the religious beliefs of the Amish who objected to
enrolling their children in high school as required by law. The Sherbert
case is another example where the Court held that the state unemployment
compensation plan must accommodate the religious convictions of
Sherbert.331[278] In these cases of burdensome effect, the modern approach
of the Court has been to apply strict scrutiny, i.e., to declare the burden as
permissible, the Court requires the state to demonstrate that the regulation
which burdens the religious exercise pursues a particularly important or
compelling government goal through the least restrictive means. If the
states objective could be served as well or almost as well by granting an
exemption to those whose religious beliefs are burdened by the regulation,
such an exemption must be given. 332[279] This approach of the Court on
burdensome effect was only applied since the 1960s. Prior to this time,
the Court took the separationist view that as long as the state was acting in
pursuit of non-religious ends and regulating conduct rather than pure

religious beliefs, the Free Exercise Clause did not pose a hindrance such as
in Reynolds.333[280] In the second situation where accommodation is
permissible, the state may, but is not required to, accommodate religious
interests. The Walz case illustrates this situation where the Court upheld the
constitutionality of tax exemption given by New York to church properties,
but did not rule that the state was required to provide tax exemptions. The
Court declared that (t)he limits of permissible state accommodation to
religion are by no means co-extensive with the noninterference mandated
by the Free Exercise Clause.334[281] The Court held that New York could
have an interest in encouraging religious values and avoiding threats to
those values through the burden of property taxes. Other examples are the
Zorach case allowing released time in public schools and Marsh allowing
payment of legislative chaplains from public funds. Finally, in the situation
where accommodation is prohibited, establishment concerns prevail over
potential accommodation interests. To say that there are valid exemptions
buttressed by the Free Exercise Clause does not mean that all claims for
free exercise exemptions are valid.335[282] An example where accommodation
was prohibited is McCollum where the Court ruled against optional
religious instruction in the public school premises. 336[283] In effect, the last
situation would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach
follows this basic framework:
If the plaintiff can show that a law or government
practice inhibits the free exercise of his religious beliefs, the
burden shifts to the government to demonstrate that the law or
practice is necessary to the accomplishment of some
important (or compelling) secular objective and that it is the
least restrictive means of achieving that objective. If the
plaintiff meets this burden and the government does not, the
plaintiff is entitled to exemption from the law or practice at
issue. In order to be protected, the claimants beliefs must be
sincere, but they need not necessarily be consistent,
coherent, clearly articulated, or congruent with those of the
claimants religious denomination. Only beliefs rooted in
religion are protected by the Free Exercise Clause; secular
beliefs, however sincere and conscientious, do not suffice.337
[284]

326

In other words, a three-step process (also referred to as the two-step

balancing process supra when the second and third steps are
combined) as in Sherbert is followed in weighing the states interest and
religious freedom when these collide. Three questions are answered in this
process. First, (h)as the statute or government action created a burden on
the free exercise of religion? The courts often look into the sincerity of the
religious belief, but without inquiring into the truth of the belief because the
Free Exercise Clause prohibits inquiring about its truth as held in Ballard
and Cantwell. The sincerity of the claimants belief is ascertained to avoid
the mere claim of religious beliefs to escape a mandatory regulation. As
evidence of sincerity, the U.S. Supreme Court has considered historical
evidence as in Wisconsin where the Amish people had held a long-standing
objection to enrolling their children in ninth and tenth grades in public high
schools. In another case, Dobkin v. District of Columbia, 338[285] the Court
denied the claim of a party who refused to appear in court on Saturday
alleging he was a Sabbatarian, but the Court noted that he regularly
conducted business on Saturday. Although it is true that the Court might
erroneously deny some claims because of a misjudgment of sincerity, this is
not as argument to reject all claims by not allowing accommodation as a
rule. There might be injury to the particular claimant or to his religious
community, but for the most part, the injustice is done only in the particular

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case.339[286] Aside from the sincerity, the court may look into the centrality of
those beliefs, assessing them not on an objective basis but in terms of the
opinion and belief of the person seeking exemption. In Wisconsin, for
example, the Court noted that the Amish peoples convictions against
becoming involved in public high schools were central to their way of life
and faith. Similarly, in Sherbert, the Court concluded that the prohibition
against Saturday work was a cardinal principle.340[287] Professor Lupu puts
to task the person claiming exemption, viz:
On the claimants side, the meaning and significance of
the relevant religious practice must be demonstrated.
Religious command should outweigh custom, individual
conscience should count for more than personal convenience,
and theological principle should be of greater significance
than institutional ease. Sincerity matters, (footnote omitted)
and longevity of practice - both by the individual and within
the individuals religious tradition - reinforces sincerity. Most
importantly, the law of free exercise must be inclusive and
expansive, recognizing non-Christian religions - eastern,
Western, aboriginal and otherwise - as constitutionally equal
to their Christian counterparts, and accepting of the intensity
and scope of fundamentalist creed.341[288]
Second, the court asks: (i)s there a sufficiently compelling state
interest to justify this infringement of religious liberty? In this step, the
government has to establish that its purposes are legitimate for the
state and that they are compelling. Government must do more than assert
the objectives at risk if exemption is given; it must precisely show how and
to what extent those objectives will be undermined if exemptions are
granted.342[289] The person claiming religious freedom, on the other hand,
will endeavor to show that the interest is not legitimate or that the purpose,
although legitimate, is not compelling compared to infringement of
religious liberty. This step involves balancing, i.e., weighing the interest of
the state against religious liberty to determine which is more compelling
under the particular set of facts. The greater the states interests, the more
central the religious belief would have to be to overcome it. In assessing the
state interest, the court will have to determine the importance of the secular
interest and the extent to which that interest will be impaired by an
exemption for the religious practice. Should the court find the interest truly
compelling, there will be no requirement that the state diminish the
effectiveness of its regulation by granting the exemption.343[290]
Third, the court asks: (h)as the state in achieving its legitimate
purposes used the least intrusive means possible so that the free exercise is
not infringed any more than necessary to achieve the legitimate goal of the
state?344[291] The analysis requires the state to show that the means in which
it is achieving its legitimate state objective is the least intrusive means,
i.e., it has chosen a way to achieve its legitimate state end that imposes as
little as possible on religious liberties. In Cantwell, for example, the Court
invalidated the license requirement for the door-to-door solicitation as it
was a forbidden burden on religious liberty, noting that less drastic means
of insuring peace and tranquility existed. As a whole, in carrying out the
compelling state interest test, the Court should give careful attention to
context, both religious and regulatory, to achieve refined judgment. 345[292]

unsettled, mirroring the evolving views of a dynamic society.346[293]

VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of
Catholicism covered the archipelago. There was a union of church and state
and Catholicism was the state religion under the Spanish Constitution of
1876. Civil authorities exercised religious functions and the friars exercised
civil powers.347[294] Catholics alone enjoyed the right of engaging in public
ceremonies of worship.348[295] Although the Spanish Constitution itself was
not extended to the Philippines, Catholicism was also the established
church in our country under the Spanish rule. Catholicism was in fact
protected by the Spanish Penal Code of 1884 which was in effect in the
Philippines. Some of the offenses in chapter six of the Penal Code entitled
Crimes against Religion and Worship referred to crimes against the state
religion.349[296] The coming of the Americans to our country, however,
changed this state-church scheme for with the advent of this regime, the
unique American experiment of separation of church and state was
transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the
United States and Spain on December 10, 1898, the American guarantee of
religious freedom had been extended to the Philippines. The Treaty
provided that the inhabitants of the territories over which Spain
relinquishes or cedes her sovereignty shall be secured in the free exercise of
religion.350[297] Even the Filipinos themselves guaranteed religious freedom
a month later or on January 22, 1899 upon the adoption of the Malolos
Constitution of the Philippine Republic under General Emilio Aguinaldo.
It provided that the State recognizes the liberty and equality of all religion
(de todos los cultos) in the same manner as the separation of the Church
and State. But the Malolos Constitution and government was short-lived as
the Americans took over the reigns of government.351[298]
With the Philippines under the American regime, President
McKinley issued Instructions to the Second Philippine Commission, the
body created to take over the civil government in the Philippines in 1900.
The Instructions guaranteed religious freedom, viz:
That no law shall be made respecting the establishment
of religion or prohibiting the free exercise thereof, and that the
free exercise and enjoyment of religious profession and
worship without discrimination or preference shall forever be
allowed ... that no form of religion and no minister of religion
shall be forced upon the community or upon any citizen of the
Islands, that, on the other hand, no minister of religion shall
be interfered with or molested in following his calling.352[299]
This provision was based on the First Amendment of the United States
Constitution. Likewise, the Instructions declared that (t)he separation
between State and Church shall be real, entire and absolute.353[300]
Thereafter, every organic act of the Philippines contained a provision
on freedom of religion. Similar to the religious freedom clause in the
Instructions, the Philippine Bill of 1902 provided that:

In sum, as shown by U.S. jurisprudence on religion clause cases, the

competing values of secular government and religious freedom create
tensions that make constitutional law on the subject of religious liberty

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353

No law shall be made respecting an establishment of

religion or prohibiting the free exercise thereof, and that free
exercise and enjoyment of religious worship, without
discrimination or preference, shall forever be allowed.
In U.S. v. Balcorta,354[301] the Court stated that the Philippine Bill of 1902
caused the complete separation of church and state, and the abolition of all
special privileges and all restrictions theretofor conferred or imposed upon
any particular religious sect.355[302]
The Jones Law of 1916 carried the same provision, but expanded it
with a restriction against using public money or property for religious
purposes, viz:
That no law shall be made respecting an establishment
of religion or prohibiting the free exercise thereof, and that the
free exercise and enjoyment of religious profession and
worship without discrimination or preference, shall forever be
allowed; and no religious test shall be required for the
exercise of civil or political rights. No public money or
property shall ever be appropriated, applied, donated, or used,
directly or indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution, or system of
religion, or for the use, benefit or support of any priest,
preacher, minister, or other religious teachers or dignitary as
such.
This was followed by the Philippine Independence Law or TydingsMcDuffie Law of 1934 which guaranteed independence to the Philippines
and authorized the drafting of a Philippine constitution. It enjoined
Filipinos to include freedom of religion in drafting their constitution
preparatory to the grant of independence. The law prescribed that
(a)bsolute toleration of religious sentiment shall be secured and no
inhabitant or religious organization shall be molested in person or property
on account of religious belief or mode of worship.356[303]
The Constitutional Convention then began working on the 1935
Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman of
the Committee on Bill of Rights acknowledged that (i)t was the Treaty of
Paris of December 10, 1898, which first introduced religious toleration in
our country. President McKinleys Instructions to the Second Philippine
Commission reasserted this right which later was incorporated into the
Philippine Bill of 1902 and in the Jones Law. 357[304] In accordance with the
Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of
Rights, Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof, and the free exercise and enjoyment of religious
profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for
the exercise of civil or political rights.
This provision, borrowed from the Jones Law, was readily approved by the
Convention.358[305] In his speech as Chairman of the Committee on Bill of
Rights, Delegate Laurel said that modifications in phraseology of the Bill of
Rights in the Jones Law were avoided whenever possible because the
principles must remain couched in a language expressive of their historical
background, nature, extent and limitations as construed and interpreted by
the great statesmen and jurists that vitalized them.359[306]
The 1973 Constitution which superseded the 1935 Constitution
contained an almost identical provision on religious freedom in the Bill of

354

Rights in Article IV, Section 8, viz:

Sec. 8. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for
the exercise of civil or political rights.
This time, however, the General Provisions in Article XV added in Section
15 that (t)he separation of church and state shall be inviolable.
Without discussion by the 1986 Constitutional Commission, the
1973 religious clauses were reproduced in the 1987 Constitution under the
Bill of Rights in Article III, Section 5.360[307] Likewise, the provision on
separation of church and state was included verbatim in the 1987
Constitution, but this time as a principle in Section 6, Article II entitled
Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses
and the intent to adopt the historical background, nature, extent and
limitations of the First Amendment of the U.S. Constitution when it was
included in the 1935 Bill of Rights, it is not surprising that nearly all the
major Philippine cases involving the religion clauses turn to U.S.
jurisprudence in explaining the nature, extent and limitations of these
clauses. However, a close scrutiny of these cases would also reveal that
while U.S. jurisprudence on religion clauses flows into two main streams of
interpretation - separation and benevolent neutrality - the well-spring of
Philippine jurisprudence on this subject is for the most part,
benevolent neutrality which gives room for accommodation.
B. Jurisprudence

In revisiting the landscape of Philippine jurisprudence on the religion

clauses, we begin with the definition of religion. Religion is derived
from the Middle English religioun, from Old French religion, from Latin
religio, vaguely referring to a bond between man and the gods. 361[308] This
pre-Christian term for the cult and rituals of pagan Rome was first
Christianized in the Latin translation of the Bible. 362[309] While the U.S.
Supreme Court has had to take up the challenge of defining the parameters
and contours of religion to determine whether a non-theistic belief or act
is covered by the religion clauses, this Court has not been confronted with
the same issue. In Philippine jurisprudence, religion, for purposes of the
religion clauses, has thus far been interpreted as theistic. In 1937, the
Philippine case of Aglipay v. Ruiz363[310] involving the Establishment
Clause, defined religion as a profession of faith to an active power that
binds and elevates man to his Creator. Twenty years later, the Court cited
the Aglipay definition in American Bible Society v. City of Manila, 364[311]
a case involving the Free Exercise clause. The latter also cited the American
case of Davis in defining religion, viz: (i)t has reference to ones views of
his relations to His Creator and to the obligations they impose of reverence
to His being and character and obedience to His Will. The Beason
definition, however, has been expanded in U.S. jurisprudence to include
non-theistic beliefs.
1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious conscience

and prohibits any degree of compulsion or burden, whether direct or
indirect, in the practice of ones religion. The Free Exercise Clause
principally guarantees voluntarism, although the Establishment Clause also
assures voluntarism by placing the burden of the advancement of religious
groups on their intrinsic merits and not on the support of the state.365[312]

355

360

356

361

357

362

358

363

359

364

In interpreting the Free Exercise Clause, the realm of belief poses no

difficulty. The early case of Gerona v. Secretary of Education 366[313] is
instructive on the matter, viz:
The realm of belief and creed is infinite and limitless
bounded only by ones imagination and thought. So is the
freedom of belief, including religious belief, limitless and
without bounds. One may believe in most anything, however
strange, bizarre and unreasonable the same may appear to
others, even heretical when weighed in the scales of
orthodoxy or doctrinal standards. But between the freedom of
belief and the exercise of said belief, there is quite a stretch of
road to travel.367[314]
The difficulty in interpretation sets in when belief is externalized into
speech and action.
Religious speech comes within the pale of the Free Exercise Clause
as illustrated in the American Bible Society case. In that case, plaintiff
American Bible Society was a foreign, non-stock, non-profit, religious
missionary corporation which sold bibles and gospel portions of the bible in
the course of its ministry. The defendant City of Manila required plaintiff to
secure a mayors permit and a municipal license as ordinarily required of
those engaged in the business of general merchandise under the citys
ordinances. Plaintiff argued that this amounted to religious censorship and
restrained the free exercise and enjoyment of religious profession, to wit:
the distribution and sale of bibles and other religious literature to the people
of the Philippines.
After defining religion, the Court, citing Tanada and Fernando, made
this statement, viz:
The constitutional guaranty of the free exercise and
enjoyment of religious profession and worship carries with it
the right to disseminate religious information. Any restraint of
such right can only be justified like other restraints of
freedom of expression on the grounds that there is a clear
and present danger of any substantive evil which the State
has the right to prevent. (Tanada and Fernando on the
Constitution of the Philippines, vol. 1, 4th ed., p. 297)
(emphasis supplied)

did not apply the American Bible Society ruling. In Tolentino, the
Philippine Bible Society challenged the validity of the registration
provisions of the Value Added Tax (VAT) Law as a prior restraint. The
Court held, however, that the fixed amount of registration fee was not
imposed for the exercise of a privilege like a license tax which American
Bible Society ruled was violative of religious freedom. Rather, the
registration fee was merely an administrative fee to defray part of the cost
of registration which was a central feature of the VAT system. Citing
Jimmy Swaggart Ministries v. Board of Equalization, 371[318] the Court
also declared prefatorily that the Free Exercise of Religion Clause does not
prohibit imposing a generally applicable sales and use tax on the sale of
religious materials by a religious organization. In the Courts resolution of
the motion for reconsideration of the Tolentino decision, the Court noted
that the burden on religious freedom caused by the tax was just similar to
any other economic imposition that might make the right to disseminate
religious doctrines costly.
Two years after American Bible Society came the 1959 case of
Gerona v. Secretary of Education,372[319] this time involving conduct
expressive of religious belief colliding with a rule prescribed in accordance
with law. In this case, petitioners were members of the Jehovahs Witnesses.
They challenged a Department Order issued by the Secretary of Education
implementing Republic Act No. 1265 which prescribed compulsory flag
ceremonies in all public schools. In violation of the Order, petitioners
children refused to salute the Philippine flag, sing the national anthem, or
recite the patriotic pledge, hence they were expelled from school. Seeking
protection under the Free Exercise Clause, petitioners claimed that their
refusal was on account of their religious belief that the Philippine flag is an
image and saluting the same is contrary to their religious belief. The Court
stated, viz:
. . . If the exercise of religious belief clashes with the
established institutions of society and with the law, then the
former must yield to the latter. The Government steps in and
either restrains said exercise or even prosecutes the one
exercising it. (emphasis supplied)373[320]
The Court then proceeded to determine if the acts involved constituted a
religious ceremony in conflict with the beliefs of the petitioners with the
following justification:
After all, the determination of whether a certain ritual is
or is not a religious ceremony must rest with the courts. It
cannot be left to a religious group or sect, much less to a
follower of said group or sect; otherwise, there would be
confusion and misunderstanding for there might be as many
interpretations and meaning to be given to a certain ritual or
ceremony as there are religious groups or sects or followers,
all depending upon the meaning which they, though in all
sincerity and good faith, may want to give to such ritual or
ceremony.374[321]

This was the Courts maiden unequivocal affirmation of the clear and
present danger rule in the religious freedom area, and in Philippine
jurisprudence, for that matter.368[315] The case did not clearly show,
however, whether the Court proceeded to apply the test to the facts and
issues of the case, i.e., it did not identify the secular value the government
regulation sought to protect, whether the religious speech posed a clear and
present danger to this or other secular value protected by government, or
whether there was danger but it could not be characterized as clear and
present. It is one thing to apply the test and find that there is no clear and
present danger, and quite another not to apply the test altogether.
Instead, the Court categorically held that the questioned ordinances
were not applicable to plaintiff as it was not engaged in the business or
occupation of selling said merchandise for profit. To add, the Court,
citing Murdock v. Pennsylvania,369[316] ruled that applying the ordinance
requiring it to secure a license and pay a license fee or tax would impair its
free exercise of religious profession and worship and its right of
dissemination of religious beliefs as the power to tax the exercise of a
privilege is the power to control or suppress its enjoyment. Thus, in
American Bible Society, the clear and present danger rule was laid down
but it was not clearly applied.

It was held that the flag was not an image, the flag salute was not a
religious ceremony, and there was nothing objectionable about the singing
of the national anthem as it speaks only of love of country, patriotism,
liberty and the glory of suffering and dying for it. The Court upheld the
questioned Order and the expulsion of petitioners children, stressing that:
Men may differ and do differ on religious beliefs and
creeds, government policies, the wisdom and legality of laws,
even the correctness of judicial decisions and decrees; but in
the field of love of country, reverence for the flag, national
unity and patriotism, they can hardly afford to differ, for these
are matters in which they are mutually and vitally interested,
for to them, they mean national existence and survival as a

In the much later case of Tolentino v. Secretary of Finance,370[317]

also involving the sale of religious books, the Court distinguished the
American Bible Society case from the facts and issues in Tolentino and

365

370

366

371

367

372

368

373

369

374

nation or national extinction.375[322]

The constitutional provisions not only prohibits

legislation for the support of any religious tenets or the modes
of worship of any sect, thus forestalling compulsion by law of
the acceptance of any creed or the practice of any form of
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of ones chosen form of religion
within limits of utmost amplitude. It has been said that the
religion clauses of the Constitution are all designed to
protect the broadest possible liberty of conscience, to allow
each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the common
good. (footnote omitted). Any legislation whose effect or
purpose is to impede the observance of one or all religions,
or to discriminate invidiously between the religions, is
invalid, even though the burden may be characterized as
being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10
L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
conduct by enacting, within its power, a general law which
has for its purpose and effect to advance the states secular
goals, the statute is valid despite its indirect burden on
religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v.
Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144;
McGowan v. Maryland, 366 U.S. 420, 444-5 and 449) 381[328]
(emphasis supplied)

In support of its ruling, the Court cited Justice Frankfurters dissent in the
Barnette case, viz:
The constitutional protection of religious freedom x x x
gave religious equality, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom
from conformity to law because of religious dogma.376[323]
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the
Constitution does not and cannot mean exemption from or
non-compliance with reasonable and non-discriminatory laws,
rules and regulations promulgated by competent authority.377
[324]

Thus, the religious freedom doctrines one can derive from Gerona
are: (1) it is incumbent upon the Court to determine whether a certain ritual
is religious or not; (2) religious freedom will not be upheld if it clashes
with the established institutions of society and with the law such that
when a law of general applicability (in this case the Department Order)
incidentally burdens the exercise of ones religion, ones right to
religious freedom cannot justify exemption from compliance with the
law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of
Education, et al.378[325]
Fifteen years after Gerona came the 1974 case of Victoriano v.
Elizalde Rope Workers Union.379[326] In this unanimously decided en banc
case, Victoriano was a member of the Iglesia ni Cristo which prohibits the
affiliation of its members with any labor organization. He worked in the
Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope
Workers Union which had with the company a closed shop provision
pursuant to Republic Act No. 875 allowing closed shop arrangements.
Subsequently, Republic Act No. 3350 was enacted exempting from the
application and coverage of a closed shop agreement employees belonging
to any religious sect which prohibits affiliation of their members with any
labor organization. Victoriano resigned from the union after Republic Act
No. 3350 took effect. The union notified the company of Victorianos
resignation, which in turn notified Victoriano that unless he could make a
satisfactory arrangement with the union, the company would be constrained
to dismiss him from the service. Victoriano sought to enjoin the company
and the union from dismissing him. The court having granted the
injunction, the union came to this Court on questions of law, among which
was whether Republic Act No. 3350 was unconstitutional for impairing the
obligation of contracts and for granting an exemption offensive of the
Establishment Clause. With respect to the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a
fundamental personal right and liberty (Schneider v. Irgington,
308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a
preferred position in the hierarchy of values. Contractual
rights, therefore, must yield to freedom of religion. It is only
where unavoidably necessary to prevent an immediate and
grave danger to the security and welfare of the community
that infringement of religious freedom may be justified,
and only to the smallest extent necessary.380[327] (emphasis
supplied)
As regards the Establishment Clause issue, the Court after citing the
constitutional provision on establishment and free exercise of religion,
declared, viz:

375

Quoting Aglipay v. Ruiz,382[329] the Court held that government is

not precluded from pursuing valid objectives secular in character even if the
incidental result would be favorable to a religion or sect. It also cited
Board of Education v. Allen, 383[330] which held that in order to withstand
the strictures of constitutional prohibition, a statute must have a secular
legislative purpose and a primary effect that neither advances nor inhibits
religion. Using these criteria in upholding Republic Act No. 3350, the Court
pointed out, viz:
(Republic Act No. 3350) was intended to serve the
secular purpose of advancing the constitutional right to the
free exercise of religion, by averting that certain persons be
refused work, or be dismissed from work, or be dispossessed
of their right to work and of being impeded to pursue a
modest means of livelihood, by reason of union security
agreements. . . . The primary effects of the exemption from
closed shop agreements in favor of members of religious sects
that prohibit their members from affiliating with a labor
organization, is the protection of said employees against the
aggregate force of the collective bargaining agreement, and
relieving certain citizens of a burden on their religious beliefs,
and . . . eliminating to a certain extent economic insecurity
due to unemployment.384[331]
The Court stressed that (a)lthough the exemption may benefit those
who are members of religious sects that prohibit their members from
joining labor unions, the benefit upon the religious sects is merely
incidental and indirect.385[332] In enacting Republic Act No. 3350,
Congress merely relieved the exercise of religion by certain persons of a
burden imposed by union security agreements which Congress itself
also imposed through the Industrial Peace Act. The Court concluded the
issue of exemption by citing Sherbert which laid down the rule that when
general laws conflict with scruples of conscience, exemptions ought to be
granted unless some compelling state interest intervenes. The Court then
abruptly added that (i)n the instant case, We see no compelling state
interest to withhold exemption.386[333]
A close look at Victoriano would show that the Court mentioned
several tests in determining when religious freedom may be validly limited.

376

381

377

382

378

383

379

384

380

385

First, the Court mentioned the test of immediate and grave danger to the
security and welfare of the community and infringement of religious
freedom only to the smallest extent necessary to justify limitation of
religious freedom. Second, religious exercise may be indirectly burdened
by a general law which has for its purpose and effect the advancement of
the states secular goals, provided that there is no other means by which the
state can accomplish this purpose without imposing such burden. Third,
the Court referred to the compelling state interest test which grants
exemptions when general laws conflict with religious exercise, unless a
compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned
only for the purpose of highlighting the importance of the protection of
religious freedom as the secular purpose of Republic Act No. 3350.
Upholding religious freedom was a secular purpose insofar as it relieved the
burden on religious freedom caused by another law, i.e, the Industrial Peace
Act providing for union shop agreements. The first two tests were only
mentioned in Victoriano but were not applied by the Court to the facts and
issues of the case. The third, the compelling state interest test was
employed by the Court to determine whether the exemption provided by
Republic Act No. 3350 was not unconstitutional. It upheld the exemption,
stating that there was no compelling state interest to strike it down.
However, after careful consideration of the Sherbert case from which
Victoriano borrowed this test, the inevitable conclusion is that the
compelling state interest test was not appropriate and could not find
application in the Victoriano case. In Sherbert, appellant Sherbert invoked
religious freedom in seeking exemption from the provisions of the South
Carolina Unemployment Compensation Act which disqualified her from
claiming unemployment benefits. It was the appellees, members of the
South Carolina Employment Commission, a government agency, who
propounded the state interest to justify overriding Sherberts claim of
religious freedom. The U.S. Supreme Court, considering Sherberts and the
Commissions arguments, found that the state interest was not sufficiently
compelling to prevail over Sherberts free exercise claim. This situation did
not obtain in the Victoriano case where it was the government itself,
through Congress, which provided the exemption in Republic Act No. 3350
to allow Victorianos exercise of religion. Thus, the government could not
argue against the exemption on the basis of a compelling state interest as it
would be arguing against itself; while Victoriano would not seek exemption
from the questioned law to allow the free exercose of religion as the law in
fact provides such an exemption. In sum, although Victoriano involved a
religious belief and conduct, it did not involve a free exercise issue where
the Free Exercise Clause is invoked to exempt him from the burden
imposed by a law on his religious freedom.

The Court reiterated the Gerona ruling, viz:

In the case at bar, petitioners are not denied or
restrained of their freedom of belief or choice of their religion,
but only in the manner by which they had attempted to
translate the same to action. This curtailment is in accord
with the pronouncement of this Court in Gerona v. Secretary
of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and
the exercise of said belief, there is quite a stretch
of road to travel. If the exercise of said religious
belief clashes with the established institutions of
society and with the law, then the former must
yield and give way to the latter. The government
steps in and either restrains said exercise or even
prosecutes the one exercising it. (italics
supplied)
The majority found that the restriction imposed upon petitioners was
necessary to maintain the smooth functioning of the executive branch of
the government, which petitioners mass action would certainly
disrupt391[338] and denied the petition. Thus, without considering the tests
mentioned in Victoriano, German went back to the Gerona rule that
religious freedom will not be upheld if it clashes with the established
institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious freedom
cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional
principles as set forth in the landmark case of J.B.L. Reyes v.
Bagatsing (125 SCRA 553[1983]) should guide us in
resolving the issues.
1. The right to freely exercise ones religion is
guaranteed in Section 8 of our Bill of Rights. (footnote
omitted) Freedom of worship, alongside with freedom of
expression and speech and peaceable assembly along with
the other intellectual freedoms, are highly ranked in our
scheme of constitutional values. It cannot be too strongly
stressed that on the judiciary - even more so than on the other
departments - rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No
verbal formula, no sanctifying phrase can, of course, dispense
with what has been so felicitously termed by Justice Holmes
as the sovereign prerogative of judgment. Nonetheless, the
presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do
precedence and primacy. (J.B.L. Reyes, 125 SCRA at pp.
569-570)

Victoriano was reiterated in several cases involving the Iglesia ni

Cristo, namely Basa, et al. v. Federacion Obrera de la Industria
Tabaquera y Otros Trabajadores de Filipinas,387[334] Anucension v.
National Labor Union, et al.,388[335] and Gonzales, et al. v. Central
Azucarera de Tarlac Labor Union.389[336]
Then came German v. Barangan in 1985 at the height of the antiadministration rallies. Petitioners were walking to St. Jude Church within
the Malacanang security area to pray for an end to violence when they
were barred by the police. Invoking their constitutional freedom of religious
worship and locomotion, they came to the Court on a petition for
mandamus to allow them to enter and pray inside the St. Jude Chapel. The
Court was divided on the issue. The slim majority of six recognized their
freedom of religion but noted their absence of good faith and concluded
that they were using their religious liberty to express their opposition to the
government. Citing Cantwell, the Court distinguished between freedom to
believe and freedom to act on matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts
- freedom to believe and freedom to act. The first is absolute,
but in the nature of things, the second cannot be.390[337]

386
387

2. In the free exercise of such preferred rights, there is

to be no prior restraint although there may be subsequent
punishment of any illegal acts committed during the exercise
of such basic rights. The sole justification for a prior
restraint or limitation on the exercise of these basic rights
is the existence of a grave and present danger of a
character both grave and imminent, of a serious evil to
public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and
duty) to prevent (Idem, at pp. 560-561).392[339] (emphasis
supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankees dissent was taken involved the rights to free speech and
assembly, and not the exercise of religious freedom. At issue in that case
was a permit sought by retired Justice J.B.L. Reyes, on behalf of the AntiBases Coalition, from the City of Manila to hold a peaceful march and rally
from the Luneta to the gates of the U.S. Embassy. Nevertheless Bagatsing
was used by Justice Teehankee in his dissent which had overtones of
petitioner German and his companions right to assemble and petition the
government for redress of grievances.393[340]

388

391

389

392

390

393

In 1993, the issue on the Jehovahs Witnesses participation in the

flag ceremony again came before the Court in Ebralinag v. The Division
Superintendent of Schools.394[341] A unanimous Court overturned the
Gerona ruling after three decades. Similar to Gerona, this case involved
several Jehovahs Witnesses who were expelled from school for refusing to
salute the flag, sing the national anthem and recite the patriotic pledge, in
violation of the Administrative Code of 1987. In resolving the same
religious freedom issue as in Gerona, the Court this time transported the
grave and imminent danger test laid down in Justice Teehankees dissent
in German, viz:
The sole justification for a prior restraint or
limitation on the exercise of religious freedom (according to
the late Chief Justice Claudio Teehankee in his dissenting
opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both
grave and imminent, of a serious evil to public safety, public
morals, public health or any other legitimate public interest,
that the State has a right (and duty) to prevent. Absent such a
threat to public safety, the expulsion of the petitioners from
the schools is not justified.395[342] (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovahs
Witnesses from saluting the flag, singing the national anthem
and reciting the patriotic pledge, this religious group which
admittedly comprises a small portion of the school
population will shake up our part of the globe and suddenly
produce a nation untaught and uninculcated in and unimbued
with reverence for the flag, patriotism, love of country and
admiration for national heroes (Gerona v. Secretary of
Education, 106 Phil. 224). After all, what the petitioners seek
only is exemption from the flag ceremony, not exclusion from
the public schools where they may study the Constitution, the
democratic way of life and form of government, and learn not
only the arts, sciences, Philippine history and culture but also
receive training for a vocation or profession and be taught the
virtues of patriotism, respect for human rights, appreciation
of national heroes, the rights and duties of citizenship, and
moral and spiritual values (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the
petitioners from Philippine schools will bring about the very
situation that this Court has feared in Gerona. Forcing a small
religious group, through the iron hand of the law, to
participate in a ceremony that violates their religious beliefs,
will hardly be conducive to love of country or respect for duly
constituted authorities.396[343]
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and
loyalty even to the country, x x x- assuming that such unity
and loyalty can be attained through coercion- is not a goal that
is constitutionally obtainable at the expense of religious
liberty. A desirable end cannot be promoted by prohibited
means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042,
1046).397[344]
Towards the end of the decision, the Court also cited the Victoriano case
and its use of the compelling state interest test in according exemption to
the Jehovahs Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers Union, 59
SCRA 54, 72-75, we upheld the exemption of members of the
Iglesia ni Cristo, from the coverage of a closed shop
agreement between their employer and a union because it
would violate the teaching of their church not to join any
group:

x x x It is certain that not every

conscience can be accommodated by all the laws
of the land; but when general laws conflict with
scruples of conscience, exemptions ought to be
granted unless some compelling state interest
intervenes. (Sherbert vs. Verner, 374 U.S. 398,
10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)
We hold that a similar exemption may be accorded to
the Jehovahs Witnesses with regard to the observance of the
flag ceremony out of respect for their religious beliefs,
however bizarre those beliefs may seem to others.398[345]
The Court annulled the orders expelling petitioners from school.
Thus, the grave and imminent danger test laid down in a dissenting
opinion in German which involved prior restraint of religious worship with
overtones of the right to free speech and assembly, was transported to
Ebralinag which did not involve prior restraint of religious worship,
speech or assembly. Although, it might be observed that the Court faintly
implied that Ebralinag also involved the right to free speech when in its
preliminary remarks, the Court stated that compelling petitioners to
participate in the flag ceremony is alien to the conscience of the present
generation of Filipinos who cut their teeth on the Bill of Rights which
guarantees their rights to free speech and the free exercise of religious
profession and worship; the Court then stated in a footnote that the flag
salute, singing the national anthem and reciting the patriotic pledge are all
forms of utterances.399[346]
The compelling state interest test was not fully applied by the
Court in Ebralinag. In the Solicitor Generals consolidated comment, one
of the grounds cited to defend the expulsion orders issued by the public
respondents was that (t)he States compelling interests being pursued by
the DECs lawful regulations in question do not warrant exemption of the
school children of the Jehovahs Witnesses from the flag salute ceremonies
on the basis of their own self-perceived religious convictions. 400[347] The
Court, however, referred to the test only towards the end of the decision and
did not even mention what the Solicitor General argued as the compelling
state interest, much less did the Court explain why the interest was not
sufficiently compelling to override petitioners religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of
Iglesia ni Cristo v. Court of Appeals, et al. 401[348] Although there was a
dissent with respect to the applicability of the clear and present danger
test in this case, the majority opinion in unequivocal terms applied the
clear and present danger test to religious speech. This case involved the
television program, Ang Iglesia ni Cristo, regularly aired over the
television. Upon petitioner Iglesia ni Cristos submission of the VTR tapes
of some of its episodes, respondent Board of Review for Motion Pictures
and Television classified these as X or not for public viewing on the
ground that they offend and constitute an attack against other religions
which is expressly prohibited by law. Invoking religious freedom,
petitioner alleged that the Board acted without jurisdiction or with grave
abuse of discretion in requiring it to submit the VTR tapes of its television
program and x-rating them. While upholding the Boards power to review
the Iglesia television show, the Court was emphatic about the preferred
status of religious freedom. Quoting Justice Cruz commentary on the
constitution, the Court held that freedom to believe is absolute but freedom
to act on ones belief, where it affects the public, is subject to the authority
of the state. The commentary quoted Justice Frankfurters dissent in
Barnette which was quoted in Gerona, viz: (t)he constitutional provision
on religious freedom terminated disabilities, it did not create new
privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity
to law because of religious dogma.402[349] Nevertheless, the Court was quick
to add the criteria by which the state can regulate the exercise of religious

398

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399

395

400

396

401

397

402

freedom, that is, when the exercise will bring about the clear and present
danger of some substantive evil which the State is duty bound to prevent,
i.e., serious detriment to the more overriding interest of public health,
public morals, or public welfare.403[350]
In annulling the x-rating of the shows, the Court stressed that the
Constitution is hostile to all prior restraints on speech, including religious
speech and the x-rating was a suppression of petitioners freedom of speech
as much as it was an interference with its right to free exercise of religion.
Citing Cantwell, the Court recognized that the different religions may
criticize one another and their tenets may collide, but the Establishment
Clause prohibits the state from protecting any religion from this kind of
attack.
The Court then called to mind the clear and present danger test
first laid down in the American Bible Society case and the test of
immediate and grave danger with infringement only to the smallest
extent necessary to avoid danger in Victoriano and pointed out that the
reviewing board failed to apply the clear and present danger test.
Applying the test, the Court noted, viz:
The records show that the decision of the respondent
Board, affirmed by the respondent appellate court, is
completely bereft of findings of facts to justify the conclusion
that the subject video tapes constitute impermissible attacks
against another religion. There is no showing whatsoever of
the type of harm the tapes will bring about especially the
gravity and imminence of the threatened harm. Prior restraint
on speech, including religious speech, cannot be justified by
hypothetical fears but only by the showing of a substantive
and imminent evil which has taken the life of a reality already
on ground.

contradiction in terms.407[354] As a social value, it means that the growth of

a religious sect as a social force must come from the voluntary support of
its members because of the belief that both spiritual and secular society will
benefit if religions are allowed to compete on their own intrinsic merit
without benefit of official patronage. Such voluntarism cannot be achieved
unless the political process is insulated from religion and unless religion is
insulated from politics.408[355] Non-establishment thus calls for
government neutrality in religious matters to uphold voluntarism and
avoid breeding interfaith dissension.409[356]
The neutrality principle was applied in the first significant nonestablishment case under the 1935 Constitution. In the 1937 case of
Aglipay v. Ruiz,410[357] the Philippine Independent Church challenged the
issuance and sale of postage stamps commemorating the Thirty-Third
International Eucharistic Congress of the Catholic Church on the ground
that the constitutional prohibition against the use of public money for
religious purposes has been violated. It appears that the Director of Posts
issued the questioned stamps under the provisions of Act No. 4052 411[358]
which appropriated a sum for the cost of plates and printing of postage
stamps with new designs and authorized the Director of Posts to dispose of
the sum in a manner and frequency advantageous to the Government. The
printing and issuance of the postage stamps in question appears to have
been approved by authority of the President. Justice Laurel, speaking for
the Court, took pains explaining religious freedom and the role of religion
in society, and in conclusion, found no constitutional infirmity in the
issuance and sale of the stamps, viz:
The prohibition herein expressed is a direct corollary of
the principle of separation of church and state. Without the
necessity of adverting to the historical background of this
principle in our country, it is sufficient to say that our
history, not to speak of the history of mankind, has taught
us that the union of church and state is prejudicial to both,
for occasions might arise when the state will use the
church, and the church the state, as a weapon in the
furtherance of their respective ends and aims . . . It is
almost trite to say now that in this country we enjoy both
religious and civil freedom. All the officers of the
Government, from the highest to the lowest, in taking their
oath to support and defend the Constitution, bind themselves
to recognize and respect the constitutional guarantee of
religious freedom, with its inherent limitations and recognized
implications. It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere toleration.

Replying to the challenge on the applicability of the clear and present

danger test to the case, the Court acknowledged the permutations that the
test has undergone, but stressed that the test is still applied to four types of
speech: speech that advocates dangerous ideas, speech that provokes a
hostile audience reaction, out of court contempt and release of information
that endangers a fair trial404[351] and ruled, viz:
. . . even allowing the drift of American jurisprudence,
there is reason to apply the clear and present danger test to the
case at bar which concerns speech that attacks other religions
and could readily provoke hostile audience reaction. It cannot
be doubted that religious truths disturb and disturb terribly.405
[352]

Religious freedom, however, as a constitutional

mandate is not an inhibition of profound reverence for
religion and is not a denial of its influence in human
affairs. Religion as a profession of faith to an active power
that binds and elevates man to his Creator is recognized.
And, in so far as it instills into the minds the purest
principles of morality, its influence is deeply felt and
highly appreciated. When the Filipino people, in the
preamble of their Constitution, implored the aid of
Divine Providence, in order to establish a government that
shall embody their ideals, conserve and develop the
patrimony of the nation, promote the general welfare, and
secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty and
democracy, they thereby manifested their intense
religious nature and placed unfaltering reliance upon Him
who guides the destinies of men and nations. The elevating
influence of religion in human society is recognized here as
elsewhere. In fact, certain general concessions are
indiscriminately accorded to religious sects and

In Iglesia therefore, the Court went back to Gerona insofar as

holding that religious freedom cannot be invoked to seek exemption from
compliance with a law that burdens ones religious exercise. It also
reiterated the clear and present danger test in American Bible Society
and the grave and imminent danger in Victoriano, but this time clearly
justifying its applicability and showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of
not invalidating a law offensive to religious freedom, but carving out an
exception or upholding an exception to accommodate religious exercise
where it is justified.406[353]
2. Establishment Clause

In Philippine jurisdiction, there is substantial agreement on the

values sought to be protected by the Establishment Clause, namely,
voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a social
dimension. As a personal value, it refers to the inviolability of the human
conscience which, as discussed above, is also protected by the free exercise
clause. From the religious perspective, religion requires voluntarism
because compulsory faith lacks religious efficacy. Compelled religion is a

407

403

408

404

409

405

410

406

411

denominations. . .412[359]

Torcaso v. Watkins, an American Supreme Court

decision, has persuasive weight. What was there involved was
the validity of a provision in the Maryland Constitution
prescribing that no religious test ought ever to be required as
a disqualification for any office or profit or trust in this State,
other than a declaration of belief in the existence of God ***.
Such a constitutional requirement was assailed as contrary to
the First Amendment of the United States Constitution by an
appointee to the office of notary public in Maryland, who was
refused a commission as he would not declare a belief in God.
He failed in the Maryland Court of Appeals but prevailed in
the United States Supreme Court, which reversed the state
court decision. It could not have been otherwise. As
emphatically declared by Justice Black: this Maryland
religious test for public office unconstitutionally invades the
appellants freedom of belief and religion and therefore cannot
be enforced against him.

xxxxxx
xxx
It is obvious that while the issuance and sale of the
stamps in question may be said to be inseparably linked with
an event of a religious character, the resulting propaganda, if
any, received by the Roman Catholic Church, was not the aim
and purpose of the Government. We are of the opinion that
the Government should not be embarrassed in its activities
simply because of incidental results, more or less religious
in character, if the purpose had in view is one which could
legitimately be undertaken by appropriate legislation. The
main purpose should not be frustrated by its subordination to
mere incidental results not contemplated. (Vide Bradfield vs.
Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed.,
168)413[360] (emphases supplied)

The analogy appears to be obvious. In that case, it was

lack of belief in God that was a disqualification. Here being
an ecclesiastic and therefore professing a religious faith
suffices to disqualify for a public office. There is thus an
incompatibility between the Administrative Code provision
relied upon by petitioner and an express constitutional
mandate.417[364]

In so deciding the case, the Court, citing U.S. jurisprudence, laid down the
doctrine that a law or government action with a legitimate secular
purpose does not offend the Establishment Clause even if it incidentally
aids a particular religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.414[361]
Although the Court found that the separation of church and state was not at
issue as the controversy was over who should have custody of a saints
image, it nevertheless made pronouncements on the separation of church
and state along the same line as the Aglipay ruling. The Court held that
there was nothing unconstitutional or illegal in holding a fiesta and having a
patron saint for the barrio. It adhered to the barrio resolutions of the
barangay involved in the case stating that the barrio fiesta is a socioreligious affair, the celebration of which is an ingrained tradition in rural
communities that relieves the monotony and drudgery of the lives of the
masses. Corollarily, the Court found nothing illegal about any activity
intended to facilitate the worship of the patron saint such as the acquisition
and display of his image bought with funds obtained through solicitation
from the barrio residents. The Court pointed out that the image of the
patron saint was purchased in connection with the celebration of the barrio
fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose
of favoring any religion nor interfering with religious matters or the
religious beliefs of the barrio residents. Citing the Aglipay ruling, the
Court declared, viz:
Not every governmental activity which involves the
expenditure of public funds and which has some religious tint
is violative of the constitutional provisions regarding
separation of church and state, freedom of worship and
banning the use of public money or property.

On the other hand, the prevailing five other members of the Court Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino approached the case from a non-establishment perspective and upheld the
law as a safeguard against the constant threat of union of church and state
that has marked Philippine history. Justice Makasiar stated: To allow an
ecclesiastic to head the executive department of a municipality is to permit
the erosion of the principle of separation of Church and State and thus open
the floodgates for the violation of the cherished liberty of religion which the
constitutional provision seeks to enforce and protect. Consequently, the
Court upheld the validity of Section 2175 of the Revised Administrative
Code and declared respondent priest ineligible for the office of municipal
mayor.
Another type of cases interpreting the establishment clause deals
with intramural religious disputes. Fonacier v. Court of Appeals418[365] is
the leading case. The issue therein was the right of control over certain
properties of the Philippine Independent Church, the resolution of which
necessitated the determination of who was the legitimate bishop of the
church. The Court cited American Jurisprudence,419[366] viz:
Where, however, a decision of an ecclesiastical court
plainly violates the law it professes to administer, or is in
conflict with the law of the land, it will not be followed by the
civil courts. . . In some instances, not only have the civil
courts the right to inquire into the jurisdiction of the religious
tribunals and the regularity of their procedure, but they have
subjected their decisions to the test of fairness or to the test
furnished by the constitution and the law of the church. . . 420

Then came the 1978 case of Pamil v. Teleron, et al.415[362] which

presented a novel issue involving the religion clauses. In this case, Section
2175 of the Revised Administrative Code of 1917 disqualifying
ecclesiastics from appointment or election as municipal officer was
challenged. After protracted deliberation, the Court was sharply divided on
the issue. Seven members of the Court, one short of the number necessary
to declare a law unconstitutional, approached the problem from a free
exercise perspective and considered the law a religious test offensive of the
constitution. They were Justices Fernando, Teehankee, Muoz-Palma,
Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate Justice
Fernando, the ponente, stated, viz: The challenged Administrative Code
provision, certainly insofar as it declares ineligible ecclesiastics to any
elective or appointive office, is, on its face, inconsistent with the religious
freedom guaranteed by the Constitution. Citing Torcaso v. Watkins,416[363]
the ponencia held, viz:

The Court then ruled that petitioner Fonacier was legitimately ousted and
respondent de los Reyes was the duly elected head of the Church, based on
their internal laws. To finally dispose of the property issue, the Court, citing
Watson v. Jones,421[368] declared that the rule in property controversies
within religious congregations strictly independent of any other superior
ecclesiastical association (such as the Philippine Independent Church) is
that the rules for resolving such controversies should be those of any
voluntary association. If the congregation adopts the majority rule then the
majority should prevail; if it adopts adherence to duly constituted
authorities within the congregation, then that should be followed. Applying

412

417

413

418

414

419

415

420

416

421

[367]

these rules, Fonacier lost the case. While the Court exercised jurisdiction
over the case, it nevertheless refused to touch doctrinal and disciplinary
differences raised, viz:
The amendments of the constitution, restatement of
articles of religion and abandonment of faith or abjuration
alleged by appellant, having to do with faith, practice,
doctrine, form of worship, ecclesiastical law, custom and rule
of a church and having reference to the power of excluding
from the church those allegedly unworthy of membership, are
unquestionably ecclesiastical matters which are outside the
province of the civil courts.422[369]
VIII. Free Exercise Clause vis--vis Establishment Clause

In both Philippine and U.S. jurisdiction, it is recognized that there

is a tension between the Free Exercise Clause and the Establishment
Clause in their application. There is a natural antagonism between a
command not to establish religion and a command not to inhibit its
practice; this tension between the religion clauses often leaves the courts
with a choice between competing values in religion cases.423[370]
One set of facts, for instance, can be differently viewed from the
Establishment Clause perspective and the Free Exercise Clause point of
view, and decided in opposite directions. In Pamil, the majority gave more
weight to the religious liberty of the priest in holding that the prohibition of
ecclesiastics to assume elective or appointive government positions was
violative of the Free Exercise Clause. On the other hand, the prevailing five
justices gave importance to the Establishment Clause in stating that the
principle of separation of church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free
Exercise Clause and consequently exemptions from a law of general
applicability are afforded by the Court to the person claiming religious
freedom; the question arises whether the exemption does not amount to
support of the religion in violation of the Establishment Clause. This was
the case in the Free Exercise Clause case of Sherbert where the U.S.
Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the
establishment of the Seventh-day Adventist religion in
South Carolina, for the extension of unemployment benefits to
Sabbatarians in common with Sunday worshippers reflects
nothing more than the governmental obligation of
neutrality in the face of religious differences, and does not
represent that involvement of religious with secular
institutions which it is the object of the Establishment Clause
to forestall.424[371] (emphasis supplied)
Tension also exists when a law of general application provides
exemption in order to uphold free exercise as in the Walz case where the
appellant argued that the exemption granted to religious organizations, in
effect, required him to contribute to religious bodies in violation of the
Establishment Clause. But the Court held that the exemption was not a case
of establishing religion but merely upholding the Free Exercise Clause by
sparing the exercise of religion from the burden of property taxation levied
on private profit institutions. Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course
between the two religion clauses, both of which are cast in
absolute terms, and either of which, if expanded to a logical
extreme, would tend to clash with the other.425[372]
Similarly, the Philippine Supreme Court in the Victoriano case held that
the exemption afforded by law to religious sects who prohibit their
members from joining unions did not offend the Establishment Clause. We
ruled, viz:
We believe that in enacting Republic Act No. 3350,

Congress acted consistently with the spirit of the

constitutional provision. It acted merely to relieve the
exercise of religion, by certain persons, of a burden that is
imposed by union security agreements. 426[373] (emphasis
supplied)
Finally, in some cases, a practice is obviously violative of the
Establishment Clause but the Court nevertheless upholds it. In Schempp,
Justice Brennan stated: (t)here are certain practices, conceivably violative
of the Establishment Clause, the striking down of which might seriously
interfere with certain religious liberties also protected by the First
Amendment.
How the tension between the Establishment Clause and the Free
Exercise Clause will be resolved is a question for determination in the
actual cases that come to the Court. In cases involving both the
Establishment Clause and the Free Exercise Clause, the two clauses should
be balanced against each other. The courts must review all the relevant facts
and determine whether there is a sufficiently strong free exercise right that
should prevail over the Establishment Clause problem. In the United States,
it has been proposed that in balancing, the free exercise claim must be
given an edge not only because of abundant historical evidence in the
colonial and early national period of the United States that the free exercise
principle long antedated any broad-based support of disestablishment, but
also because an Establishment Clause concern raised by merely
accommodating a citizens free exercise of religion seems far less
dangerous to the republic than pure establishment cases. Each time the
courts side with the Establishment Clause in cases involving tension
between the two religion clauses, the courts convey a message of hostility
to the religion that in that case cannot be freely exercised. 427[374] American
professor of constitutional law, Laurence Tribe, similarly suggests that the
free exercise principle should be dominant in any conflict with the antiestablishment principle. This dominance would be the result of
commitment to religious tolerance instead of thwarting at all costs even
the faintest appearance of establishment. 428[375] In our jurisdiction, Fr.
Joaquin Bernas, S.J. asserts that a literal interpretation of the religion
clauses does not suffice. Modern society is characterized by the expanding
regulatory arm of government that reaches a variety of areas of human
conduct and an expanding concept of religion. To adequately meet the
demands of this modern society, the societal values the religion clauses are
intended to protect must be considered in their interpretation and resolution
of the tension. This, in fact, has been the approach followed by the
Philippine Court.429[376]
IX. Philippine Religion Clauses: Nature, Purpose, Tests
Based on Philippine and American Religion Clause History,
Law and Jurisprudence

The history of the religion clauses in the 1987 Constitution shows

that these clauses were largely adopted from the First Amendment of the
U.S. Constitution. The religion clauses in the First Amendment were
contained in every organic Act of the Philippines under the American
regime. When the delegates of the 1934 Constitutional Convention adopted
a Bill of Rights in the 1935 Constitution, they purposely retained the
phraseology of the religion clauses in the First Amendment as contained in
the Jones Law in order to adopt its historical background, nature, extent and
limitations. At that time, there were not too many religion clause cases in
the United States as the U.S. Supreme Court decided an Establishment
Clause issue only in the 1947 Everson case. The Free Exercise Clause
cases were also scarce then. Over the years, however, with the expanding
reach of government regulation to a whole gamut of human actions and the
growing plurality and activities of religions, the number of religion clause
cases in the U.S. exponentially increased. With this increase came an
expansion of the interpretation of the religion clauses, at times reinforcing
prevailing case law, at other times modifying it, and still at other times
creating contradictions so that two main streams of jurisprudence had
become identifiable. The first stream employs separation while the second
employs benevolent neutrality in interpreting the religious clauses.

422

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423

427

424

428

425

429

Alongside this change in the landscape of U.S. religion clause

jurisprudence, the Philippines continued to adopt the 1935 Constitution
religion clauses in the 1973 Constitution and later, the 1987 Constitution.
Philippine jurisprudence and commentaries on the religious clauses
also continued to borrow authorities from U.S. jurisprudence without
articulating the stark distinction between the two streams of U.S.
jurisprudence. One might simply conclude that the Philippine
Constitutions and jurisprudence also inherited the disarray of U.S. religion
clause jurisprudence and the two identifiable streams; thus, when a religion
clause case comes before the Court, a separationist approach or a
benevolent neutrality approach might be adopted and each will have U.S.
authorities to support it. Or, one might conclude that as the history of the
First Amendment as narrated by the Court in Everson supports the
separationist approach, Philippine jurisprudence should also follow this
approach in light of the Philippine religion clauses history. As a result, in a
case where the party claims religious liberty in the face of a general law
that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation
would not be breached if the Court grants him an exemption. These
conclusions, however, are not and were never warranted by the 1987,
1973 and 1935 Constitutions as shown by other provisions on religion
in all three constitutions. It is a cardinal rule in constitutional construction
that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a manner
that will give to all of them full force and effect. 430[377] From this
construction, it will be ascertained that the intent of the framers was to
adopt a benevolent neutrality approach in interpreting the religious
clauses in the Philippine constitutions, and the enforcement of this intent
is the goal of construing the constitution.431[378]
We first apply the hermeneutical scalpel to dissect the 1935
Constitution. At the same time that the 1935 Constitution provided for an
Establishment Clause, it also provided for tax exemption of church property
in Article VI, Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents,
appurtenant thereto, and all lands, buildings, and
improvements used exclusively for religious, charitable, or
educational purposes shall be exempt from taxation.
Before the advent of the 1935 Constitution, Section 344 of the
Administrative Code provided for a similar exemption. To the same effect,
the Tydings-McDuffie Law contained a limitation on the taxing power of
the Philippine government during the Commonwealth period.432[379] The
original draft of the Constitution placed this provision in an ordinance to be
appended to the Constitution because this was among the provisions
prescribed by the Tydings-McDuffie Law. However, in order to have a
constitutional guarantee for such an exemption even beyond the
Commonwealth period, the provision was introduced in the body of the
Constitution on the rationale that if churches, convents [rectories or
parsonages] and their accessories are always necessary for facilitating the
exercise of such [religious] freedom, it would also be natural that their
existence be also guaranteed by exempting them from taxation. 433[380] The
amendment was readily approved with 83 affirmative votes against 15
negative votes.434[381]
The Philippine constitutional provision on tax exemption is not
found in the U.S. Constitution. In the U.S. case of Walz, the Court
struggled to justify this kind of exemption to withstand Establishment
Clause scrutiny by stating that church property was not singled out but was
exempt along with property owned by non-profit, quasi-public corporations
because the state upheld the secular policy that considers these groups as
beneficial and stabilizing influences in community life and finds this
classification useful, desirable, and in the public interest. The Court also
stated that the exemption was meant to relieve the burden on free exercise
imposed by property taxation. At the same time, however, the Court

acknowledged that the exemption was an exercise of benevolent neutrality

to accommodate a long-standing tradition of exemption. With the inclusion
of the church property tax exemption in the body of the 1935 Constitution
and not merely as an ordinance appended to the Constitution, the
benevolent neutrality referred to in the Walz case was given constitutional
imprimatur under the regime of the 1935 Constitution. The provision, as
stated in the deliberations, was an acknowledgment of the necessity of the
exempt institutions to the exercise of religious liberty, thereby evincing
benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section
23(3), viz:
(3) No public money, or property shall ever be
appropriated, applied, or used, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination,
sectarian institution or system of religion, for the use, benefit
or support of any priest, preacher, ministers or other religious
teacher or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed
forces or to any penal institution, orphanage, or
leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of
section 3 of the Jones Law which did not contain the above exception, viz:
No public money or property shall ever be
appropriated, applied, or used, directly or indirectly, for the
use, benefit, or support of any sect, church denomination,
sectarian institution, or system of religion, or for the use,
benefit or support of any priest, preacher, minister, or
dignitary as such435[382]
In the deliberations of this draft provision, an amendment was proposed to
strike down everything after church denomination.436[383] The proposal
intended to imitate the silence of the U.S. Constitution on the subject of
support for priests and ministers. It was also an imitation of the silence of
the Malolos Constitution to restore the situation under the Malolos
Constitution and prior to the Jones Law, when chaplains of the
revolutionary army received pay from public funds with no doubt about its
legality. It was pointed out, however, that even with the prohibition under
the Jones Law, appropriations were made to chaplains of the national
penitentiary and the Auditor General upheld its validity on the basis of a
similar United States practice. But it was also pointed out that the U.S.
Constitution did not contain a prohibition on appropriations similar to the
Jones Law.437[384] To settle the question on the constitutionality of payment
of salaries of religious officers in certain government institutions and to
avoid the feared situation where the enumerated government institutions
could not employ religious officials with compensation, the exception in the
1935 provision was introduced and approved. The provision garnered 74
affirmative votes against 34 negative votes. 438[385] As pointed out in the
deliberations, the U.S. Constitution does not provide for this exemption.
However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a
benevolent neutrality approach, implicitly approved the state of Texas
payment of prison chaplains salaries as reasonably necessary to permit
inmates to practice their religion. Also, in the Marsh case, the U.S.
Supreme Court upheld the long-standing tradition of beginning legislative
sessions with prayers offered by legislative chaplains retained at taxpayers
expense. The constitutional provision exempting religious officers in
government institutions affirms the departure of the Philippine Constitution
from the U.S. Constitution in its adoption of benevolent neutrality in
Philippine jurisdiction. While the provision prohibiting aid to religion
protects the wall of separation between church and state, the provision at
the same time gives constitutional sanction to a breach in the wall.

430

To further buttress the thesis that benevolent neutrality is

contemplated in the Philippine Establishment Clause, the 1935 Constitution
provides for optional religious instruction in public schools in Article XIII,
Section 5, viz:

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. . . Optional religious instruction shall be maintained in

the public schools as now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of
any church established in the town where a public school is
situated, either in person or by a designated teacher of
religion, to teach religion for one-half hour three times a
week, in the school building, to those public-school pupils
whose parents or guardians desire it and express their desire
therefor in writing filed with the principal of the school . . .
During the debates of the Constitutional Convention, there were three
positions on the issue of religious instruction in public schools. The first
held that the teaching of religion in public schools should be prohibited as
this was a violation of the principle of separation of church and state and
the prohibition against the use of public funds for religious purposes. The
second favored the proposed optional religious instruction as authorized by
the Administrative Code and recognized that the actual practice of allowing
religious instruction in the public schools was sufficient proof that religious
instruction was not and would not be a source of religious discord in the
schools.439[386] The third wanted religion to be included as a course in the
curriculum of the public schools but would only be taken by pupils at the
option of their parents or guardians. After several rounds of debate, the
second camp prevailed, thus raising to constitutional stature the optional
teaching of religion in public schools, despite the opposition to the
provision on the ground of separation of church and state. 440[387] As in the
provisions on church property tax exemption and compensation of religious
officers in government institutions, the U.S. Constitution does not provide
for optional religious instruction in public schools. In fact, in the
McCollum case, the Court, using strict neutrality, prohibited this kind of
religious instruction where the religion teachers would conduct class within
the school premises. The constitutional provision on optional religious
instruction shows that Philippine jurisdiction rejects the strict neutrality
approach which does not allow such accommodation of religion.
Finally, to make certain the Constitutions benevolence to religion,
the Filipino people implored (ing) the aid of Divine Providence (,) in order
to establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare, and
secure to themselves and their posterity the blessings of independence
under a regime of justice, liberty, and democracy, (in) ordain(ing) and
promulgat(ing) this Constitution. A preamble is a key to open the mind of
the authors of the constitution as to the evil sought to be prevented and the
objects sought to be accomplished by the provisions thereof. 441[388] There
was no debate on the inclusion of a Divine Providence in the preamble. In
Aglipay, Justice Laurel noted that when the Filipino people implored the
aid of Divine Providence, (t)hey thereby manifested their intense religious
nature and placed unfaltering reliance upon Him who guides the destinies
of men and nations.442[389] The 1935 Constitutions religion clauses,
understood alongside the other provisions on religion in the Constitution,
indubitably shows not hostility, but benevolence, to religion.443[390]
The 1973 Constitution contained in Article VI, Section 22(3) a
provision similar to Article VI, Section 22, par. 3(b) of the 1935
Constitution on exemption of church property from taxation, with the
modification that the property should not only be used directly, but also
actually and exclusively for religious or charitable purposes. Parallel to
Article VI, Section 23(3) of the 1935 Constitution, the 1973 Constitution
also contained a similar provision on salaries of religious officials
employed in the enumerated government institutions. Article XIII, Section
5 of the 1935 Constitution on optional religious instruction was also carried
to the 1973 Constitution in Article XV, Section 8(8) with the modification
that optional religious instruction shall be conducted as may be provided
by law and not as now authorized by law as stated in the 1935

Constitution. The 1973 counterpart, however, made explicit in the

constitution that the religious instruction in public elementary and high
schools shall be done (a)t the option expressed in writing by the parents or
guardians, and without cost to them and the government. With the
adoption of these provisions in the 1973 Constitution, the benevolent
neutrality approach continued to enjoy constitutional sanction. In Article
XV, Section 15 of the General Provisions of the 1973 Constitution this
provision made its maiden appearance: (t)he separation of church and state
shall be inviolable. The 1973 Constitution retained the portion of the
preamble imploring the aid of Divine Providence.
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and
Problems of the Committee on Church and State of the 1971 Constitutional
Convention, the question arose as to whether the absolute separation of
Church and State as enunciated in the Everson case and reiterated in
Schempp - i.e., neutrality not only as between one religion and another but
even as between religion and non-religion - is embodied in the Philippine
Constitution. The sub-committees answer was that it did not seem so.
Citing the Aglipay case where Justice Laurel recognized the elevating
influence of religion in human society and the Filipinos imploring of
Divine Providence in the 1935 Constitution, the sub-committee asserted
that the state may not prefer or aid one religion over another, but may aid
all religions equally or the cause of religion in general. 444[391] Among the
position papers submitted to the Committee on Church on State was a
background paper for reconsideration of the religion provisions of the
constitution by Fr. Bernas, S.J. He stated therein that the Philippine
Constitution is not hostile to religion and in fact recognizes the value of
religion and accommodates religious values.445[392] Stated otherwise, the
Establishment Clause contemplates not a strict neutrality but benevolent
neutrality. While the Committee introduced the provision on separation of
church and state in the General Provisions of the 1973 Constitution, this
was nothing new as according to it, this principle was implied in the 1935
Constitution even in the absence of a similar provision. 446[393]
Then came the 1987 Constitution. The 1973 Constitutional provision
on tax exemption of church property was retained with minor modification
in Article VI, Section 28(3) of the 1987 Constitution. The same is true with
respect to the prohibition on the use of public money and property for
religious purposes and the salaries of religious officers serving in the
enumerated government institutions, now contained in Article VI, Section
29(2). Commissioner Bacani, however, probed into the possibility of
allowing the government to spend public money for purposes which might
have religious connections but which would benefit the public generally.
Citing the Aglipay case, Commissioner Rodrigo explained that if a public
expenditure would benefit the government directly, such expense would be
constitutional even if it results to an incidental benefit to religion. With that
explanation, Commissioner Bacani no longer pursued his proposal. 447[394]
The provision on optional religious instruction was also adopted in
the 1987 Constitution in Article XIV, Section 3(3) with the modification
that it was expressly provided that optional instruction shall be conducted
within the regular class hours and without additional cost to the
government. There were protracted debates on what additional cost meant,
i.e., cost over and above what is needed for normal operations such as wear
and tear, electricity, janitorial services, 448[395] and when during the day
instruction would be conducted.449[396] In deliberating on the phrase within
the regular class hours, Commissioner Aquino expressed her reservations
to this proposal as this would violate the time-honored principle of
separation of church and state. She cited the McCullom case where
religious instruction during regular school hours was stricken down as
unconstitutional and also cited what she considered the most liberal
interpretation of separation of church and state in Surach v. Clauson where

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the U.S. Supreme Court allowed only release time for religious instruction.
Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide
for an exception to the rule on non-establishment of
religion, because if it were not necessary to make this
exception for purposes of allowing religious instruction, then
we could just drop the amendment. But, as a matter of fact,
this is necessary because we are trying to introduce
something here which is contrary to American practices.450
[397]
(emphasis supplied)
(W)ithin regular class hours was approved.
The provision on the separation of church and state was retained but
placed under the Principles in the Declaration of Principles and State
Policies in Article II, Section 6. In opting to retain the wording of the
provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the
sentence The separation of Church and State is inviolable, is
almost a useless statement; but at the same time it is a
harmless statement. Hence, I am willing to tolerate it there,
because, in the end, if we look at the jurisprudence on Church
and State, arguments are based not on the statement of
separation of church and state but on the non-establishment
clause in the Bill of Rights.451[398]
The preamble changed Divine Providence in the 1935 and 1973
Constitutions to Almighty God. There was considerable debate on
whether to use Almighty God which Commissioner Bacani said was
more reflective of Filipino religiosity, but Commissioner Rodrigo recalled
that a number of atheistic delegates in the 1971 Constitutional Convention
objected to reference to a personal God. 452[399] God of History, Lord of
History and God were also proposed, but the phrase Almighty God
prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that the
1987 Constitution is not hostile nor indifferent to religion; 453[400] its wall of
separation is not a wall of hostility or indifference.454[401]
The provisions of the 1935, 1973 and 1987 constitutions on tax
exemption of church property, salary of religious officers in government
institutions, optional religious instruction and the preamble all reveal
without doubt that the Filipino people, in adopting these constitutions, did
not intend to erect a high and impregnable wall of separation between the
church and state.455[402] The strict neutrality approach which examines only
whether government action is for a secular purpose and does not consider
inadvertent burden on religious exercise protects such a rigid barrier. By
adopting the above constitutional provisions on religion, the Filipinos
manifested their adherence to the benevolent neutrality approach in
interpreting the religion clauses, an approach that looks further than the
secular purposes of government action and examines the effect of these
actions on religious exercise. Benevolent neutrality recognizes the
religious nature of the Filipino people and the elevating influence of
religion in society; at the same time, it acknowledges that government must
pursue its secular goals. In pursuing these goals, however, government
might adopt laws or actions of general applicability which inadvertently
burden religious exercise. Benevolent neutrality gives room for
accommodation of these religious exercises as required by the Free
Exercise Clause. It allows these breaches in the wall of separation to uphold
religious liberty, which after all is the integral purpose of the religion
clauses. The case at bar involves this first type of accommodation where
an exemption is sought from a law of general applicability that

450
451
452
453

inadvertently burdens religious exercise.

Although our constitutional history and interpretation mandate
benevolent neutrality, benevolent neutrality does not mean that the
Court ought to grant exemptions every time a free exercise claim comes
before it. But it does mean that the Court will not look with hostility or
act indifferently towards religious beliefs and practices and that it will
strive to accommodate them when it can within flexible constitutional
limits; it does mean that the Court will not simply dismiss a claim
under the Free Exercise Clause because the conduct in question offends
a law or the orthodox view for this precisely is the protection afforded
by the religion clauses of the Constitution, i.e., that in the absence of
legislation granting exemption from a law of general applicability, the
Court can carve out an exception when the religion clauses justify it.
While the Court cannot adopt a doctrinal formulation that can eliminate the
difficult questions of judgment in determining the degree of burden on
religious practice or importance of the state interest or the sufficiency of the
means adopted by the state to pursue its interest, the Court can set a
doctrine on the ideal towards which religious clause jurisprudence should
be directed.456[403] We here lay down the doctrine that in Philippine
jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly, because
our constitutional history and interpretation indubitably show that
benevolent neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases. The ideal towards
which this approach is directed is the protection of religious liberty
not only for a minority, however small- not only for a majority,
however large- but for each of us to the greatest extent possible within
flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but
has also been recognized in Philippine jurisprudence, albeit not expressly
called benevolent neutrality or accommodation. In Aglipay, the Court
not only stressed the elevating influence of religion in human society but
acknowledged the Constitutional provisions on exemption from tax of
church property, salary of religious officers in government institutions, and
optional religious instruction as well as the provisions of the Administrative
Code making Thursday and Friday of the Holy Week, Christmas Day and
Sundays legal holidays. In Garces, the Court not only recognized the
Constitutional provisions indiscriminately granting concessions to religious
sects and denominations, but also acknowledged that government
participation in long-standing traditions which have acquired a social
character - the barrio fiesta is a socio-religious affair - does not offend the
Establishment Clause. In Victoriano, the Court upheld the exemption from
closed shop provisions of members of religious sects who prohibited their
members from joining unions upon the justification that the exemption was
not a violation of the Establishment Clause but was only meant to relieve
the burden on free exercise of religion. In Ebralinag, members of the
Jehovahs Witnesses were exempt from saluting the flag as required by law,
on the basis not of a statute granting exemption but of the Free Exercise
Clause without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form
and origin, Philippine constitutional law has departed from the U.S.
jurisprudence of employing a separationist or strict neutrality
approach. The Philippine religion clauses have taken a life of their own,
breathing the air of benevolent neutrality and accommodation. Thus, the
wall of separation in Philippine jurisdiction is not as high and impregnable
as the wall created by the U.S. Supreme Court in Everson.457[404] While the
religion clauses are a unique American experiment which understandably
came about as a result of Americas English background and colonization,
the life that these clauses have taken in this jurisdiction is the Philippines
own experiment, reflective of the Filipinos own national soul, history and
tradition. After all, the life of the law. . . has been experience.
But while history, constitutional construction, and earlier
jurisprudence unmistakably show that benevolent neutrality is the lens
with which the Court ought to view religion clause cases, it must be
stressed that the interest of the state should also be afforded utmost
protection. To do this, a test must be applied to draw the line between
permissible and forbidden religious exercise. It is quite paradoxical that in
order for the members of a society to exercise their freedoms, including
their religious liberty, the law must set a limit when their exercise offends
the higher interest of the state. To do otherwise is self-defeating for
unlimited freedom would erode order in the state and foment anarchy,
eventually destroying the very state its members established to protect their
freedoms. The very purpose of the social contract by which people establish

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the state is for the state to protect their liberties; for this purpose, they give
up a portion of these freedoms - including the natural right to free exercise to the state. It was certainly not the intention of the authors of the
constitution that free exercise could be used to countenance actions that
would undo the constitutional order that guarantees free exercise.458[405]

while at the same time affording protection to the paramount interests of the
state. This was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the compelling state interest
test, by upholding the paramount interests of the state, seeks to protect the
very state, without which, religious liberty will not be preserved.

The all important question then is the test that should be used in
ascertaining the limits of the exercise of religious freedom. Philippine
jurisprudence articulates several tests to determine these limits. Beginning
with the first case on the Free Exercise Clause, American Bible Society,
the Court mentioned the clear and present danger test but did not employ
it. Nevertheless, this test continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the
immediate and grave danger test as well as the doctrine that a law of
general applicability may burden religious exercise provided the law is the
least restrictive means to accomplish the goal of the law. The case also
used, albeit inappropriately, the compelling state interest test. After
Victoriano, German went back to the Gerona rule. Ebralinag then
employed the grave and immediate danger test and overruled the Gerona
test. The fairly recent case of Iglesia ni Cristo went back to the clear and
present danger test in the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the clear and present
danger or grave and immediate danger test involved, in one form or
another, religious speech as this test is often used in cases on freedom of
expression. On the other hand, the Gerona and German cases set the rule
that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by
German has been overruled by Ebralinag which employed the grave and
immediate danger test. Victoriano was the only case that employed the
compelling state interest test, but as explained previously, the use of the
test was inappropriate to the facts of the case.

X. Application of the Religion Clauses to the Case at Bar

The case at bar does not involve speech as in American Bible

Society, Ebralinag and Iglesia ni Cristo where the clear and present
danger and grave and immediate danger tests were appropriate as speech
has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the
benevolent neutrality approach, thus not appropriate in this jurisdiction.
Similar to Victoriano, the present case involves purely conduct arising
from religious belief. The compelling state interest test is proper
where conduct is involved for the whole gamut of human conduct has
different effects on the states interests: some effects may be immediate
and short-term while others delayed and far-reaching. A test that would
protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of
the state would suffice to prevail over the right to religious freedom as this
is a fundamental right that enjoys a preferred position in the hierarchy of
rights - the most inalienable and sacred of all human rights, in the words
of Jefferson.459[406] This right is sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The entire constitutional order
of limited government is premised upon an acknowledgment of such higher
sovereignty,460[407] thus the Filipinos implore the aid of Almighty God in
order to build a just and humane society and establish a government. As
held in Sherbert, only the gravest abuses, endangering paramount
interests can limit this fundamental right. A mere balancing of interests
which balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can prevail over
the fundamental right to religious liberty. The test requires the state to carry
a heavy burden, a compelling one, for to do otherwise would allow the state
to batter religion, especially the less powerful ones until they are
destroyed.461[408] In determining which shall prevail between the states
interest and religious liberty, reasonableness shall be the guide. 462[409] The
compelling state interest serves the purpose of revering religious liberty

458

A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government employees

engaged in illicit relations are guilty of disgraceful and immoral conduct
for which he/she may be held administratively liable. 463[410] In these cases,
there was not one dissent to the majoritys ruling that their conduct was
immoral. The respondents themselves did not foist the defense that their
conduct was not immoral, but instead sought to prove that they did not
commit the alleged act or have abated from committing the act. The facts of
the 1975 case of De Dios v. Alejo464[411] and the 1999 case of Maguad v. De
Guzman,465[412] are similar to the case at bar - i.e., the complainant is a mere
stranger and the legal wife has not registered any objection to the illicit
relation, there is no proof of scandal or offense to the moral sensibilities of
the community in which the respondent and the partner live and work, and
the government employee is capacitated to marry while the partner is not
capacitated but has long been separated in fact. Still, the Court found the
government employees administratively liable for disgraceful and immoral
conduct and only considered the foregoing circumstances to mitigate the
penalty. Respondent Escritor does not claim that there is error in the settled
jurisprudence that an illicit relation constitutes disgraceful and immoral
conduct for which a government employee is held liable. Nor is there an
allegation that the norms of morality with respect to illicit relations have
shifted towards leniency from the time these precedent cases were decided.
The Court finds that there is no such error or shift, thus we find no reason to
deviate from these rulings that such illicit relationship constitutes
disgraceful and immoral conduct punishable under the Civil Service Law.
Respondent having admitted the alleged immoral conduct, she, like the
respondents in the above-cited cases, could be held administratively liable.
However, there is a distinguishing factor that sets the case at bar apart from
the cited precedents, i.e., as a defense, respondent invokes religious
freedom since her religion, the Jehovahs Witnesses, has, after thorough
investigation, allowed her conjugal arrangement with Quilapio based on the
churchs religious beliefs and practices. This distinguishing factor compels
the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at
bar, both the dissenting opinion of Mme. Justice Ynares-Santiago and the
separate opinion of Mr. Justice Vitug dwell more on the standards of
morality than on the religion clauses in deciding the instant case. A
discussion on morality is in order.
At base, morality refers to, in Socrates words, how we ought to
live and why. Any definition of morality beyond Socrates simple
formulation is bound to offend one or another of the many rival theories
regarding what it means to live morally.466[413] The answer to the question of
how we ought to live necessarily considers that man does not live in
isolation, but in society. Devlin posits that a society is held together by a
community of ideas, made up not only of political ideas but also of ideas
about the manner its members should behave and govern their lives. The
latter are their morals; they constitute the public morality. Each member of
society has ideas about what is good and what is evil. If people try to create
a society wherein there is no fundamental agreement about good and evil,
they will fail; if having established the society on common agreement, the
agreement collapses, the society will disintegrate. Society is kept together
by the invisible bonds of common thought so that if the bonds are too loose,
the members would drift apart. A common morality is part of the bondage
and the bondage is part of the price of society; and mankind, which needs
society, must pay its price.467[414] This design is parallel with the social
contract in the realm of politics: people give up a portion of their liberties to
the state to allow the state to protect their liberties. In a constitutional order,

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people make a fundamental agreement about the powers of government and

their liberties and embody this agreement in a constitution, hence referred
to as the fundamental law of the land. A complete break of this fundamental
agreement such as by revolution destroys the old order and creates a new
one.468[415] Similarly, in the realm of morality, the breakdown of the
fundamental agreement about the manner a societys members should
behave and govern their lives would disintegrate society. Thus, society is
justified in taking steps to preserve its moral code by law as it does to
preserve its government and other essential institutions. 469[416] From these
propositions of Devlin, one cannot conclude that Devlin negates diversity in
society for he is merely saying that in the midst of this diversity, there
should nevertheless be a fundamental agreement about good and evil that
will govern how people in a society ought to live. His propositions, in fact,
presuppose diversity hence the need to come to an agreement; his position
also allows for change of morality from time to time which may be brought
about by this diversity. In the same vein, a pluralistic society lays down
fundamental rights and principles in their constitution in establishing and
maintaining their society, and these fundamental values and principles are
translated into legislation that governs the order of society, laws that may be
amended from time to time. Harts argument propounded in Mr. Justice
Vitugs separate opinion that, Devlins view of people living in a single
society as having common moral foundation (is) overly simplistic because
societies have always been diverse fails to recognize the necessity of
Devlins proposition in a democracy. Without fundamental agreement on
political and moral ideas, society will fall into anarchy; the agreement is
necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral ideas
is distilled in the public square. Where citizens are free, every opinion,
every prejudice, every aspiration, and every moral discernment has access
to the public square where people deliberate the order of their life together.
Citizens are the bearers of opinion, including opinion shaped by, or
espousing religious belief, and these citizens have equal access to the public
square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for
public deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this
democratic governance.470[417] Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the
beliefs and preferences of the majority, i.e., the mainstream or median
groups.471[418] Nevertheless, in the very act of adopting and accepting a
constitution and the limits it specifies -- including protection of religious
freedom not only for a minority, however small- not only for a majority,
however large- but for each of us -- the majority imposes upon itself a selfdenying ordinance. It promises not to do what it otherwise could do: to ride
roughshod over the dissenting minorities.472[419] In the realm of religious
exercise, benevolent neutrality that gives room for accommodation
carries out this promise, provided the compelling interests of the state are
not eroded for the preservation of the state is necessary to the preservation
of religious liberty. That is why benevolent neutrality is necessary in a
pluralistic society such as the United States and the Philippines to
accommodate those minority religions which are politically powerless. It is
not surprising that Smith is much criticized for it blocks the judicial
recourse of the minority for religious accommodations.

time.474[421] Occasionally though, a disproportionate political influence

might cause a law to be enacted at odds with public morality or legislature
might fail to repeal laws embodying outdated traditional moral views. 475[422]
Law has also been defined as something men create in their best moments
to protect themselves in their worst moments. 476[423] Even then, laws are
subject to amendment or repeal just as judicial pronouncements are subject
to modification and reversal to better reflect the public morals of a society
at a given time. After all, the life of the law...has been experience, in the
words of Justice Holmes. This is not to say though that law is all of
morality. Law deals with the minimum standards of human conduct while
morality is concerned with the maximum. A person who regulates his
conduct with the sole object of avoiding punishment under the law does not
meet the higher moral standards set by society for him to be called a
morally upright person.477[424] Law also serves as a helpful starting point for
thinking about a proper or ideal public morality for a society 478[425] in
pursuit of moral progress.
In Magno v. Court of Appeals, et al., 479[426] we articulated the
relationship between law and public morality. We held that under the
utilitarian theory, the protective theory in criminal law, criminal law is
founded upon the moral disapprobation x x x of actions which are
immoral, i.e., which are detrimental (or dangerous) to those conditions
upon which depend the existence and progress of human society. This
disapprobation is inevitable to the extent that morality is generally
founded and built upon a certain concurrence in the moral opinions of
all. x x x That which we call punishment is only an external means of
emphasizing moral disapprobation: the method of punishment is in reality
the amount of punishment.480[427] Stated otherwise, there are certain
standards of behavior or moral principles which society requires to be
observed and these form the bases of criminal law. Their breach is an
offense not only against the person injured but against society as a whole. 481
[428]
Thus, even if all involved in the misdeed are consenting parties, such as
in the case at bar, the injury done is to the public morals and the public
interest in the moral order.482[429] Mr. Justice Vitug expresses concern on this
point in his separate opinion. He observes that certain immoral acts which
appear private and not harmful to society such as sexual congress between
a man and a prostitute, though consensual and private, and with no injured
third party, remains illegal in this country. His opinion asks whether these
laws on private morality are justified or they constitute impingement on
ones freedom of belief. Discussion on private morality, however, is not
material to the case at bar for whether respondents conduct, which
constitutes concubinage,483[430] is private in the sense that there is no injured
party or the offended spouse consents to the concubinage, the inescapable
fact is that the legislature has taken concubinage out of the sphere of private
morals. The legislature included concubinage as a crime under the Revised
Penal Code and the constitutionality of this law is not being raised in the

474
475

The laws enacted become expressions of public morality. As Justice

Holmes put it, (t)he law is the witness and deposit of our moral life. 473[420]
In a liberal democracy, the law reflects social morality over a period of

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478

469

479

470

480

471

481

472

482

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483

case at bar. In the definition of the crime of concubinage, consent of the

injured party, i.e., the legal spouse, does not alter or negate the crime unlike
in rape484[431] where consent of the supposed victim negates the crime. If at
all, the consent or pardon of the offended spouse in concubinage negates
the prosecution of the action,485[432] but does not alter the legislatures
characterization of the act as a moral disapprobation punishable by law. The
separate opinion states that, (t)he ponencia has taken pains to distinguish
between secular and private morality, and reached the conclusion that the
law, as an instrument of the secular State should only concern itself with
secular morality. The Court does not draw this distinction in the case at
bar. The distinction relevant to the case is not, as averred and discussed by
the separate opinion, between secular and private morality, but between
public and secular morality on the one hand, and religious morality on the
other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or
otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs which
are not punishable by law, Articles 19 and 21 in Chapter 2 of the
Preliminary Title of the New Civil Code, dealing with Human Relations,
provide for the recognition of the wrong and the concomitant punishment in
the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights
and in the performance of his duties, act with justice, give
everyone his due and observe honesty and good faith.
xxxxxx
xxx
Art. 21. Any person who willfully causes loss or injury
to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the
damage. (emphasis supplied)
We then cited in Velayo the Code Commissions comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule
is approved (as it was approved), would vouchsafe adequate
legal remedy for that untold numbers of moral wrongs
which is impossible for human foresight to provide for
specifically in the statutes.
But, it may be asked, would this proposed article
obliterate the boundary line between morality and law? The
answer is that, in the last analysis, every good law draws its
breath of life from morals, from those principles which are
written with words of fire in the conscience of man. If this
premise is admitted, then the proposed rule is a prudent
earnest of justice in the face of the impossibility of
enumerating, one by one, all wrongs which cause damages.
When it is reflected that while codes of law and statutes have
changed from age to age, the conscience of man has remained
fixed to its ancient moorings, one can not but feel that it is
safe and salutary to transmute, as far as may be, moral
norms into legal rules, thus imparting to every legal system
that enduring quality which ought to be one of its superlative
attributes.

establishing a religion, including the morality it sanctions. Religious

morality proceeds from a persons views of his relations to His Creator
and to the obligations they impose of reverence to His being and character
and obedience to His Will, in accordance with this Courts definition of
religion in American Bible Society citing Davis. Religion also dictates
how we ought to live for the nature of religion is not just to know, but
often, to act in accordance with mans views of his relations to His
Creator.487[434] But the Establishment Clause puts a negative bar against
establishment of this morality arising from one religion or the other, and
implies the affirmative establishment of a civil order for the resolution of
public moral disputes. This agreement on a secular mechanism is the price
of ending the war of all sects against all; the establishment of a secular
public moral order is the social contract produced by religious truce.488[435]
Thus, when the law speaks of immorality in the Civil Service Law
or immoral in the Code of Professional Responsibility for lawyers 489[436],
or public morals in the Revised Penal Code,490[437] or morals in the New
Civil Code,491[438] or moral character in the Constitution, 492[439] the
distinction between public and secular morality on the one hand, and
religious morality, on the other, should be kept in mind. 493[440] The morality
referred to in the law is public and necessarily secular, not religious as the
dissent of Mr. Justice Carpio holds. Religious teachings as expressed in
public debate may influence the civil public order but public moral disputes
may be resolved only on grounds articulable in secular terms. 494[441]
Otherwise, if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require
conformity to what some might regard as religious programs or agenda. The
non-believers would therefore be compelled to conform to a standard of
conduct buttressed by a religious belief, i.e., to a compelled religion,
anathema to religious freedom. Likewise, if government based its actions
upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views
that would not support the policy. As a result, government will not provide
full religious freedom for all its citizens, or even make it appear that those
whose beliefs are disapproved are second-class citizens. Expansive
religious freedom therefore requires that government be neutral in matters
of religion; governmental reliance upon religious justification is
inconsistent with this policy of neutrality.495[442]
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have a
secular purpose. That is, the government proscribes this conduct because it
is detrimental (or dangerous) to those conditions upon which depend the
existence and progress of human society and not because the conduct is
proscribed by the beliefs of one religion or the other. Although admittedly,
moral judgments based on religion might have a compelling influence on
those engaged in public deliberations over what actions would be
considered a moral disapprobation punishable by law. After all, they might
also be adherents of a religion and thus have religious opinions and moral
codes with a compelling influence on them; the human mind endeavors to

487
488

Furthermore, there is no belief of more baneful

consequence upon the social order than that a person may
with impunity cause damage to his fellow-men so long as he
does not break any law of the State, though he may be defying
the most sacred postulates of morality. What is more, the
victim loses faith in the ability of the government to afford
him protection or relief.

489

A provision similar to the one under consideration is

embodied in article 826 of the German Civil Code. 486[433]
(emphases supplied)

491

The public morality expressed in the law is necessarily secular for in

our constitutional order, the religion clauses prohibit the state from

492

484

493

485

494

486

495

490

regulate the temporal and spiritual institutions of society in a uniform

manner, harmonizing earth with heaven. 496[443] Succinctly put, a law could
be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it
must have an articulable and discernible secular purpose and justification to
pass scrutiny of the religion clauses. Otherwise, if a law has an apparent
secular purpose but upon closer examination shows a discriminatory and
prohibitory religious purpose, the law will be struck down for being
offensive of the religion clauses as in Church of the Lukumi Babalu Aye,
Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting
animal sacrifice of the Santeria. Recognizing the religious nature of the
Filipinos and the elevating influence of religion in society, however, the
Philippine constitutions religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that government
must pursue its secular goals and interests but at the same time strives to
uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is
secular, benevolent neutrality could allow for accommodation of morality
based on religion, provided it does not offend compelling state interests.
Mr. Justice Vitugs separate opinion embraces the benevolent
neutrality approach when it states that in deciding the case at bar, the
approach should consider that, (a)s a rule . . . moral laws are justified only
to the extent that they directly or indirectly serve to protect the interests of
the larger society. It is only where their rigid application would serve to
obliterate the value which society seeks to uphold, or defeat the purpose for
which they are enacted would, a departure be justified. In religion clause
parlance, the separate opinion holds that laws of general applicability
governing morals should have a secular purpose of directly or indirectly
protecting the interests of the state. If the strict application of these laws
(which are the Civil Service Law and the laws on marriage) would erode
the secular purposes of the law (which the separate opinion identifies as
upholding the sanctity of marriage and the family), then in a benevolent
neutrality framework, an accommodation of the unconventional religious
belief and practice (which the separate opinion holds should be respected
on the ground of freedom of belief) that would promote the very same
secular purpose of upholding the sanctity of marriage and family through
the Declaration Pledging Faithfulness that makes the union binding and
honorable before God and men, is required by the Free Exercise Clause.
The separate opinion then makes a preliminary discussion of the values
society seeks to protect in adhering to monogamous marriage, but
concludes that these values and the purposes of the applicable laws should
be thoroughly examined and evidence in relation thereto presented in the
OCA. The accommodation approach in the case at bar would also require a
similar discussion of these values and presentation of evidence before the
OCA by the state that seeks to protect its interest on marriage and opposes
the accommodation of the unconventional religious belief and practice
regarding marriage.
The distinction between public and secular morality as expressed albeit not exclusively - in the law, on the one hand, and religious morality,
on the other, is important because the jurisdiction of the Court extends
only to public and secular morality. Whatever pronouncement the Court
makes in the case at bar should be understood only in this realm where it
has authority. More concretely, should the Court declare respondents
conduct as immoral and hold her administratively liable, the Court will be
holding that in the realm of public morality, her conduct is reprehensible or
there are state interests overriding her religious freedom. For as long as her
conduct is being judged within this realm, she will be accountable to the
state. But in so ruling, the Court does not and cannot say that her conduct
should be made reprehensible in the realm of her church where it is
presently sanctioned and that she is answerable for her immorality to her
Jehovah God nor that other religions prohibiting her conduct are correct.
On the other hand, should the Court declare her conduct permissible, the
Court will be holding that under her unique circumstances, public morality
is not offended or that upholding her religious freedom is an interest higher
than upholding public morality thus her conduct should not be penalized.
But the Court is not ruling that the tenets and practice of her religion are
correct nor that other churches which do not allow respondents conjugal
arrangement should likewise allow such conjugal arrangement or should
not find anything immoral about it and therefore members of these churches
are not answerable for immorality to their Supreme Being. The Court
cannot speak more than what it has authority to say. In Ballard, the U.S.
Supreme Court held that courts cannot inquire about the truth of religious
beliefs. Similarly, in Fonacier, this Court declared that matters dealing with
faith, practice, doctrine, form of worship, ecclesiastical law, custom and
rule of a churchare unquestionably ecclesiastical matters which are
outside the province of the civil courts. 497[444] But while the state, including

the Court, accords such deference to religious belief and exercise which
enjoy protection under the religious clauses, the social contract and the
constitutional order are designed in such a way that when religious belief
flows into speech and conduct that step out of the religious sphere and
overlap with the secular and public realm, the state has the power to
regulate, prohibit and penalize these expressions and embodiments of belief
insofar as they affect the interests of the state. The states inroad on religion
exercise in excess of this constitutional design is prohibited by the religion
clauses; the Old World, European and American history narrated above
bears out the wisdom of this proscription.
Having distinguished between public and secular morality and
religious morality, the more difficult task is determining which immoral
acts under this public and secular morality fall under the phrase
disgraceful and immoral conduct for which a government employee may
be held administratively liable. The line is not easy to draw for it is like a
line that divides land and sea, a coastline of irregularities and
indentations.498[445] But the case at bar does not require us to
comprehensively delineate between those immoral acts for which one may
be held administratively liable and those to which administrative liability
does not attach. We need not concern ourselves in this case therefore
whether laziness, gluttony, vanity, selfishness, avarice and cowardice are
immoral acts which constitute grounds for administrative liability. Nor need
we expend too much energy grappling with the propositions that not all
immoral acts are illegal or not all illegal acts are immoral, or different
jurisdictions have different standards of morality as discussed by the
dissents and separate opinions, although these observations and
propositions are true and correct. It is certainly a fallacious argument that
because there are exceptions to the general rule that the law is the witness
and deposit of our moral life, then the rule is not true; in fact, that there are
exceptions only affirms the truth of the rule. Likewise, the observation that
morality is relative in different jurisdictions only affirms the truth that there
is morality in a particular jurisdiction; without, however, discounting the
truth that underneath the moral relativism are certain moral absolutes such
as respect for life and truth-telling, without which no society will survive.
Only one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally married to
another which Philippine law and jurisprudence consider both immoral and
illegal. Lest the Court inappropriately engage in the impossible task of
prescribing comprehensively how one ought to live, the Court must focus
its attention upon the sole conduct in question before us.
In interpreting disgraceful and immoral conduct, the dissenting
opinion of Mme. Justice Ynares-Santiago groped for standards of morality
and stated that the ascertainment of what is moral or immoral calls for the
discovery of contemporary community standards but did not articulate
how these standards are to be ascertained. Instead, it held that, (f)or those
in the service of the Government, provisions of law and court
precedents . . . have to be considered. It identified the Civil Service Law
and the laws on adultery and concubinage as laws which respondents
conduct has offended and cited a string of precedents where a government
employee was found guilty of committing a disgraceful and immoral
conduct for maintaining illicit relations and was thereby penalized. As
stated above, there is no dispute that under settled jurisprudence,
respondents conduct constitutes disgraceful and immoral conduct.
However, the cases cited by the dissent do not involve the defense of
religious freedom which respondent in the case at bar invokes. Those cited
cases cannot therefore serve as precedents in settling the issue in the case at
bar.
Mme. Justice Ynares-Santiagos dissent also cites Cleveland v.
United States499[446] in laying down the standard of morality, viz: (w)hether
an act is immoral within the meaning of the statute is not to be determined
by respondents concept of morality. The law provides the standard; the
offense is complete if respondent intended to perform, and did in fact
perform, the act which it condemns. The Mann Act under consideration in
the Cleveland case declares as an offense the transportation in interstate
commerce of any woman or girl for the purpose of prostitution or
debauchery, or for any other immoral purpose. 500[447] The resolution of that
case hinged on the interpretation of the phrase immoral purpose. The U.S.
Supreme Court held that the petitioner Mormons act of transporting at least
one plural wife whether for the purpose of cohabiting with her, or for the
purpose of aiding another member of their Mormon church in such a

498

496

499

497

500

project, was covered by the phrase immoral purpose. In so ruling, the

Court relied on Reynolds which held that the Mormons practice of
polygamy, in spite of their defense of religious freedom, was odious
among the northern and western nations of Europe, 501[448] a return to
barbarism,502[449] contrary to the spirit of Christianity and of the
civilization which Christianity has produced in the Western world, 503[450]
and thus punishable by law.
The Cleveland standard, however, does not throw light to the issue
in the case at bar. The pronouncements of the U.S. Supreme Court that
polygamy is intrinsically odious or barbaric do not apply in the
Philippines where Muslims, by law, are allowed to practice polygamy.
Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction
holding that the defense of religious freedom of a member of the Jehovahs
Witnesses under the same circumstances as respondent will not prevail over
the laws on adultery, concubinage or some other law. We cannot summarily
conclude therefore that her conduct is likewise so odious and barbaric
as to be immoral and punishable by law.
While positing the view that the resolution of the case at bar lies
more on determining the applicable moral standards and less on religious
freedom, Mme. Justice Ynares-Santiagos dissent nevertheless discussed
respondents plea of religious freedom and disposed of this defense by
stating that (a) clear and present danger of a substantive evil, destructive to
public morals, is a ground for the reasonable regulation of the free exercise
and enjoyment of religious profession. (American Bible Society v. City of
Manila, 101 Phil. 386 [1957]). In addition to the destruction of public
morals, the substantive evil in this case is the tearing down of morality,
good order, and discipline in the judiciary. However, the foregoing
discussion has shown that the clear and present danger test that is usually
employed in cases involving freedom of expression is not appropriate to the
case at bar which involves purely religious conduct. The dissent also cites
Reynolds in supporting its conclusion that respondent is guilty of
disgraceful and immoral conduct. The Reynolds ruling, however, was
reached with a strict neutrality approach, which is not the approach
contemplated by the Philippine constitution. As discussed above, Philippine
jurisdiction adopts benevolent neutrality in interpreting the religion
clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict
neutrality does not reflect the constitutional intent of employing benevolent
neutrality in interpreting the Philippine religion clauses. His dissent avers
that respondent should be held administratively liable not for disgraceful
and immoral conduct but conduct prejudicial to the best interest of the
service as she is a necessary co-accused of her partner in concubinage. The
dissent stresses that being a court employee, her open violation of the law is
prejudicial to the administration of justice. Firstly, the dissent offends due
process as respondent was not given an opportunity to defend herself
against the charge of conduct prejudicial to the best interest of the
service. In addition, there is no evidence of the alleged prejudice to the
best interest of the service. Most importantly, the dissent concludes that
respondents plea of religious freedom cannot prevail without so much as
employing a test that would balance respondents religious freedom and the
states interest at stake in the case at bar. The foregoing discussion on the
doctrine of religious freedom, however, shows that with benevolent
neutrality as a framework, the Court cannot simply reject respondents plea
of religious freedom without even subjecting it to the compelling state
interest test that would balance her freedom with the paramount interests
of the state. The strict neutrality employed in the cases the dissent cites
-Reynolds, Smith and People v. Bitdu decided before the 1935
Constitution which unmistakably shows adherence to benevolent
neutrality - is not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v.
Judge Nabdar J. Malik504[451] cited in Mr. Justice Carpios dissent decisive
of the immorality issue in the case at bar. In that case, the Court dismissed
the charge of immorality against a Tausug judge for engaging in an
adulterous relationship with another woman with whom he had three
children because it (was) not immoral by Muslim standards for Judge
Malik to marry a second time while his first marriage (existed). Putting the

501
502

quoted portion in its proper context would readily show that the Sulu
Islamic case does not provide a precedent to the case at bar. Immediately
prior to the portion quoted by the dissent, the Court stressed, viz: (s)ince
Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to
the crime of bigamy shall not apply to a person married x x x under
Muslim Law, it is not immoral by Muslim standards for Judge Malik to
marry a second time while his first marriage exists. 505[452] It was by law,
therefore, that the Muslim conduct in question was classified as an
exception to the crime of bigamy and thus an exception to the general
standards of morality. The constitutionality of P.D. No. 1083 when
measured against the Establishment Clause was not raised as an issue in the
Sulu Islamic case. Thus, the Court did not determine whether P.D. No.
1083 suffered from a constitutional infirmity and instead relied on the
provision excepting the challenged Muslim conduct from the crime of
bigamy in holding that the challenged act is not immoral by Muslim
standards. In contradistinction, in the case at bar, there is no similar law
which the Court can apply as basis for treating respondents conduct as an
exception to the prevailing jurisprudence on illicit relations of civil
servants. Instead, the Free Exercise Clause is being invoked to justify
exemption.
B. Application of Benevolent Neutrality and the
Compelling State Interest Test to the Case at Bar

The case at bar being one of first impression, we now subject the
respondents claim of religious freedom to the compelling state interest
test from a benevolent neutrality stance - i.e. entertaining the possibility
that respondents claim to religious freedom would warrant carving out an
exception from the Civil Service Law; necessarily, her defense of religious
freedom will be unavailing should the government succeed in
demonstrating a more compelling state interest.
In applying the test, the first inquiry is whether respondents
right to religious freedom has been burdened. There is no doubt that
choosing between keeping her employment and abandoning her religious
belief and practice and family on the one hand, and giving up her
employment and keeping her religious practice and family on the other
hand, puts a burden on her free exercise of religion. In Sherbert, the Court
found that Sherberts religious exercise was burdened as the denial of
unemployment benefits forces her to choose between following the
precepts of her religion and forfeiting benefits, on the one hand, and
abandoning one of the precepts of her religion in order to accept work, on
the other hand. The burden on respondent in the case at bar is even greater
as the price she has to pay for her employment is not only her religious
precept but also her family which, by the Declaration Pledging
Faithfulness, stands honorable before God and men.
The second step is to ascertain respondents sincerity in her
religious belief. Respondent appears to be sincere in her religious belief
and practice and is not merely using the Declaration of Pledging
Faithfulness to avoid punishment for immorality. She did not secure the
Declaration only after entering the judiciary where the moral standards are
strict and defined, much less only after an administrative case for
immorality was filed against her. The Declaration was issued to her by her
congregation after ten years of living together with her partner, Quilapio,
and ten years before she entered the judiciary. Ministers from her
congregation testified on the authenticity of the Jehovahs Witnesses
practice of securing a Declaration and their doctrinal or scriptural basis for
such a practice. As the ministers testified, the Declaration is not
whimsically issued to avoid legal punishment for illicit conduct but to make
the union of their members under respondents circumstances honorable
before God and men. It is also worthy of notice that the Report and
Recommendation of the investigating judge annexed letters506[453] of the
OCA to the respondent regarding her request to be exempt from attending
the flag ceremony after Circular No. 62-2001 was issued requiring
attendance in the flag ceremony. The OCAs letters were not submitted by
respondent as evidence but annexed by the investigating judge in
explaining that he was caught in a dilemma whether to find respondent
guilty of immorality because the Court Administrator and Deputy Court
Administrator had different positions regarding respondents request for
exemption from the flag ceremony on the ground of the Jehovahs
Witnesses contrary belief and practice. Respondents request for exemption
from the flag ceremony shows her sincerity in practicing the Jehovahs
Witnesses beliefs and not using them merely to escape punishment. She is
a practicing member of the Jehovahs Witnesses and the Jehovah ministers

503

505

504

506

testified that she is a member in good standing. Nevertheless, should the

government, thru the Solicitor General, want to further question the
respondents sincerity and the centrality of her practice in her faith, it
should be given the opportunity to do so. The government has not been
represented in the case at bar from its incipience until this point.
In any event, even if the Court deems sufficient respondents
evidence on the sincerity of her religious belief and its centrality in her
faith, the case at bar cannot still be decided using the compelling state
interest test. The case at bar is one of first impression, thus the parties
were not aware of the burdens of proof they should discharge in the Courts
use of the compelling state interest test. We note that the OCA found
respondents defense of religious freedom unavailing in the face of the
Courts ruling in Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is
mirrored in the conduct, official and otherwise, of the
personnel who work thereat, from the judge to the lowest of
its personnel. Court personnel have been enjoined to adhere to
the exacting standards of morality and decency in their
professional and private conduct in order to preserve the good
name and integrity of the courts of justice.
It is apparent from the OCAs reliance upon this ruling that the state
interest it upholds is the preservation of the integrity of the judiciary by
maintaining among its ranks a high standard of morality and decency.
However, there is nothing in the OCAs memorandum to the Court that
demonstrates how this interest is so compelling that it should override
respondents plea of religious freedom nor is it shown that the means
employed by the government in pursuing its interest is the least restrictive
to respondents religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to
present evidence on the compelling interest of the state. The burden of
evidence should be discharged by the proper agency of the government
which is the Office of the Solicitor General. To properly settle the issue in
the case at bar, the government should be given the opportunity to
demonstrate the compelling state interest it seeks to uphold in opposing the
respondents stance that her conjugal arrangement is not immoral and
punishable as it comes within the scope of free exercise protection. Should
the Court prohibit and punish her conduct where it is protected by the
Free Exercise Clause, the Courts action would be an unconstitutional
encroachment of her right to religious freedom. 507[454] We cannot
therefore simply take a passing look at respondents claim of religious
freedom, but must instead apply the compelling state interest test. The
government must be heard on the issue as it has not been given an
opportunity to discharge its burden of demonstrating the states compelling
interest which can override respondents religious belief and practice. To
repeat, this is a case of first impression where we are applying the
compelling state interest test in a case involving purely religious conduct.
The careful application of the test is indispensable as how we will decide
the case will make a decisive difference in the life of the respondent who
stands not only before the Court but before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of
the Court Administrator. The Solicitor General is ordered to intervene in the
case where it will be given the opportunity (a) to examine the sincerity and
centrality of respondents claimed religious belief and practice; (b) to
present evidence on the states compelling interest to override
respondents religious belief and practice; and (c) to show that the means
the state adopts in pursuing its interest is the least restrictive to respondents
religious freedom. The rehearing should be concluded thirty (30) days from
the Office of the Court Administrators receipt of this Decision.
SO ORDERED.
Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ.,
concur.
Bellosillo and Vitug, JJ., please see separate opinion.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the
dissenting opinion of J. Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official le

507